UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 8, 2016
CONAGRA BRANDS, INC.
(Exact name of registrant as specified in its charter)
Delaware | 1-7275 | 47-0248710 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
||
222 W. Merchandise Mart Plaza, Suite 1300 Chicago, Illinois |
60654 | |||
(Address of principal executive offices) | (Zip Code) |
(312) 549-5000
(Registrants telephone number, including area code)
ConAgra Foods, Inc.
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement. |
Separation and Distribution Agreement and Certain Other Separation-Related Agreements
On November 9, 2016, Conagra Brands, Inc. (formerly known as ConAgra Foods, Inc., the Company ) completed the previously announced spinoff of Lamb Weston Holdings, Inc. ( Lamb Weston ) through a distribution of 100% of the Companys interest in Lamb Weston to holders of shares of the Companys common stock (the Spinoff ) as of 5:00 p.m., New York City time, on November 1, 2016. On November 8, 2016, in connection with the Spinoff, the Company entered into several agreements with Lamb Weston that govern the relationship of the parties following the Spinoff, including the following:
| Separation and Distribution Agreement; |
| Tax Matters Agreement; |
| Employee Matters Agreement; |
| Transition Services Agreement; and |
| Trademark License Agreement. |
Summaries of certain terms of these agreements can be found in the section entitled Relationship with ConAgra After the Spinoff in Lamb Westons Information Statement, filed as Exhibit 99.1 to Lamb Westons Registration Statement on Form 10 (File No. 001-37830) (as amended, the Registration Statement ) with the Securities and Exchange Commission, and are incorporated herein by reference. Such summaries are qualified in their entirety by reference to the full text of the Separation and Distribution Agreement, Tax Matters Agreement, Employee Matters Agreement, Transition Services Agreement and Trademark License Agreement, copies of which are filed as Exhibits 2.1, 10.1, 10.2, 10.3 and 10.4, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
In connection with the Spinoff, W.G. Jurgensen and Timothy R. McLevish became directors of Lamb Weston on October 30, 2016 and November 8, 2016, respectively, and resigned as directors of the Company effective as of 11:59 p.m., New York city time, on November 9, 2016.
Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On November 9, 2016, the Company filed an Amended and Restated Certificate of Incorporation ( Certificate of Incorporation ) with the Secretary of State of the State of Delaware, which became effective as of 11:59 p.m., New York city time, on November 9, 2016. The Certificate of Incorporation changed the name of the Company from ConAgra Foods, Inc. to Conagra Brands, Inc. A copy of the Certificate of Incorporation is filed as Exhibit 3.1 to this Current Report on Form 8-K.
Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
Exhibit
|
Description |
|
2.1* | Separation and Distribution Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. | |
3.1 | Amended and Restated Certificate of Incorporation of Conagra Brands, Inc. | |
10.1 | Tax Matters Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. | |
10.2 | Employee Matters Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. |
- 2 -
Exhibit
|
Description |
|
10.3 | Transition Services Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. | |
10.4 | Trademark License Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. |
* | Certain exhibits and schedules have been omitted and the Company agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted exhibits and schedules upon request. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
CONAGRA BRANDS, INC. | ||||
By: | /s/ Colleen Batcheler | |||
Name: | Colleen Batcheler | |||
Title: | Executive Vice President, General Counsel and Corporate Secretary |
Date: November 10, 2016
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EXHIBIT INDEX
Exhibit
|
Description |
|
2.1* | Separation and Distribution Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. | |
3.1 | Amended and Restated Certificate of Incorporation of Conagra Brands, Inc. | |
10.1 | Tax Matters Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. | |
10.2 | Employee Matters Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. | |
10.3 | Transition Services Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. | |
10.4 | Trademark License Agreement, dated as of November 8, 2016, by and between ConAgra Foods, Inc. and Lamb Weston Holdings, Inc. |
* | Certain exhibits and schedules have been omitted and the Company agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted exhibits and schedules upon request. |
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Exhibit 2.1
SEPARATION AND DISTRIBUTION AGREEMENT
between
CONAGRA FOODS, INC.
and
LAMB WESTON HOLDINGS, INC.
dated
November 8, 2016
TABLE OF CONTENTS
-i-
-ii-
SEPARATION AND DISTRIBUTION AGREEMENT
This Separation and Distribution Agreement (this Agreement ), dated November 8, 2016, is between ConAgra Foods, Inc., a Delaware corporation ( ConAgra ) and Lamb Weston Holdings, Inc., a Delaware corporation and wholly owned Subsidiary of ConAgra ( SpinCo or Lamb Weston ). Each of ConAgra and SpinCo is sometimes referred to individually as a Party and collectively they are sometimes referred to as the Parties .
RECITALS
1. ConAgra is engaged, directly and indirectly through certain of its Subsidiaries, in the LW Business.
2. The Board of Directors of ConAgra (the ConAgra Board ) has determined that it would be appropriate and in the best interests of ConAgra and its stockholders for ConAgra to separate its businesses into two publicly-traded companies: (i) ConAgra, which will be renamed Conagra Brands, Inc. and will continue to conduct, directly and through members of the ConAgra Group, the Retained Business, and (ii) Lamb Weston, which will continue to conduct, directly and through members of the LW Group, the LW Business (the Separation ).
3. ConAgra has formed SpinCo in order to facilitate such Separation and the Distribution.
4. ConAgra currently owns all of the issued and outstanding shares of common stock, par value $1.00 per share, of SpinCo (collectively with shares of common stock of SpinCo issued to ConAgra pursuant to the LW Transfer, the SpinCo Common Stock ).
5. To effect the Separation and the Distribution, (i) ConAgra or other members of the ConAgra Group have contributed or will contribute their interests in the LW Assets to a member of the LW Group, (ii) SpinCo or another member of the LW Group has assumed or will assume the LW Liabilities, (iii) ConAgra or another member of the ConAgra Group has retained or assumed, or will retain or assume the Excluded Liabilities and (iv) the Special Cash Payment will be paid and the Stock Issuance and the Special SpinCo Securities Issuance will occur as provided herein (together, the LW Transfer ).
6. The Parties contemplate that, immediately following the LW Transfer, ConAgra will distribute all of the shares of SpinCo Common Stock to ConAgras stockholders without consideration on a pro rata basis (the Distribution ).
7. It is intended, for U.S. federal income Tax purposes, that (i) the LW Transfer, together with the Debt Exchange and the Distribution, will qualify as a reorganization within the meaning of Section 368(a)(1)(D) of the Code and that each of ConAgra and SpinCo will be a party to the reorganization within the meaning of Section 368(b) of the Code, (ii) the Distribution, as such, will qualify as a distribution of
SpinCo Common Stock to ConAgras stockholders pursuant to Section 355 of the Code, (iii) the Special Cash Payment will qualify as money distributed to ConAgra creditors or shareholders in connection with the reorganization for purposes of Section 361(b) of the Code, (iv) the Special SpinCo Securities Issuance will qualify as a tax-free issuance under Section 361(a) of the Code and the Debt Exchange will qualify as a tax-free exchange to ConAgra within the meaning of Section 361(c) of the Code and (v) this Agreement constitutes a plan of reorganization within the meaning of Treasury Regulation Section 1.368-2(g).
Accordingly, the Parties agree as follows:
I. LW TRANSFER AND RESTRUCTURING
1.01 Transfer and Internal Restructuring . (a) Overview . Prior to consummating the Distribution, to the extent not already completed, each of ConAgra and SpinCo will, and will cause their Affiliates to, consummate the Internal Restructuring.
(b) Business Transfer Time . Subject to the satisfaction and waiver of the conditions set forth in Article II , the effective time and date of each Conveyance and assumption of any Asset or Liability in accordance with this Article I that has not occurred prior to the Distribution Date will be 12:01 a.m. Eastern Time on the Distribution Date (the Business Transfer Time ).
1.02 Conveyance of Assets; Assumption and Discharge of Liabilities . Except as otherwise expressly provided herein or in any of the other Transaction Documents or Ancillary Agreements, and except to the extent previously effected pursuant to the Internal Restructuring, upon the terms and subject to the conditions set forth in this Agreement, effective as of the Business Transfer Time:
(a) ConAgra will have assigned, transferred, conveyed and delivered ( Convey ), or will have caused the Affiliated Transferors to Convey, to SpinCo or to one or more other members of the LW Group as contemplated by the Internal Restructuring, and SpinCo will accept from ConAgra (or the applicable Affiliated Transferor), or will have caused any other applicable member of the LW Group to accept, all of ConAgras and the applicable Affiliated Transferors respective right, title and interest in and to all of the LW Assets, including the equity interests in the LW Entities (it being understood that any LW Assets that are already held by a member of the LW Group as of the Business Transfer Time will continue to be held by such LW Group member);
(b) ConAgra will have Conveyed, or will have caused the Affiliated Transferors to Convey, to SpinCo or to one or more other members of the LW Group as SpinCo may have designated, and SpinCo will (or will cause the other members of the LW Group as applicable to) assume, perform, timely pay and discharge when due, fulfill when due and comply with all of the LW Liabilities in accordance with their respective terms (it being understood that any LW Liabilities that are already Liabilities of a member of the LW Group as of the Business Transfer Time will continue to be Liabilities of such LW Group member);
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(c) SpinCo will have, and ConAgra will have caused SpinCo to, Convey, or caused another applicable member of the LW Group to Convey, to ConAgra or to such other members of the ConAgra Group as ConAgra may designate, all of SpinCos and the applicable LW Group members respective right, title and interest in and to all of the Excluded Assets (it being understood that any Excluded Assets that are already held by a member of the ConAgra Group as of the Business Transfer Time will continue to be held by such ConAgra Group member); and
(d) SpinCo will have, and ConAgra will have caused SpinCo to, Convey, or will have caused another applicable member of the LW Group to Convey, to ConAgra or to such other members of the ConAgra Group as ConAgra may designate, and ConAgra will (or will cause another member of the ConAgra Group as applicable to) assume, perform, timely pay and discharge when due, fulfill when due and comply with all of the Excluded Liabilities in accordance with their respective terms (it being understood that any Excluded Liabilities that are already Liabilities of a member of the ConAgra Group as of the Business Transfer Time will continue to be Liabilities of such ConAgra Group member).
1.03 Transfers Not Effected Prior to the Business Transfer Time . In the event that any Conveyance of an Asset or assumption of a Liability required by any of the Transaction Documents has not been effected at or before the Business Transfer Time, the obligation to Convey such Asset or assume such Liability will continue after the Business Transfer Time and will be promptly effected, without further consideration, subject to the terms and conditions set forth in the Transaction Documents. From and after the Business Transfer Time, each of ConAgra and SpinCo will promptly Convey or cause the other members of its Group promptly to Convey to the appropriate member of the other Group, from time to time, any property received that is allocated to the other Group pursuant to this Agreement or the other Transaction Documents. Without limiting the foregoing, in the event any member of the LW Group or member of the ConAgra Group will, after the Business Transfer Time, receive funds upon the payment of accounts receivable or other amounts under Contracts or other Assets or Liabilities that are allocated to a member of the other Group pursuant to this Agreement or the other Transaction Documents, such party will Convey, or cause to be Conveyed, such funds to the applicable member of the other Group by wire transfer promptly after the receiving party becomes aware of having received such funds.
1.04 Preservation of Tax-Free Status . Notwithstanding anything in this Article I to the contrary, no ConAgra Group member nor any of its Affiliates will be required to undertake any action or arrangement contemplated by this Article I that would result in, or could reasonably be expected to result in, Tax treatment that is inconsistent with the Intended Tax-Free Treatment, as determined by ConAgra in its sole discretion.
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1.05 LW Assets . (a) For purposes of this Agreement and subject to the exclusions set forth in Section 1.05(b) , LW Assets means all Assets owned or held by any member of the ConAgra Group that are included in any of clauses (i) through (xiv) below or that are otherwise exclusively used or held for exclusive use in the LW Business and are of a nature not otherwise addressed in such clauses, in each case whether now existing or hereafter acquired prior to the Business Transfer Time:
(i) (A) all tangible machinery, molds, tools (including special and general tools), equipment, furniture and other tangible personal property exclusively used or held for exclusive use in the LW Business, (B) computers, smartphones and similar communications equipment provided by the ConAgra Group in connection with a LW Employees performance of services, (C) all motor vehicles and other transportation equipment exclusively used or held for exclusive use in the LW Business or provided for the use of a LW Employee, and (D) the items listed on Schedule 1.05(a)(i) ;
(ii) all product inventories, raw and packaging materials, parts, work-in-process and finished goods and products, in each case to the extent exclusively used or held for exclusive use in the LW Business (the LW Inventory );
(iii) all Real Property Interests in the land and facilities listed on Schedule 1.05(a)(iii) , together with the improvements, structures and fixtures located thereon (the LW Facilities );
(iv) all issued and outstanding capital stock or other equity interests of (A) any Person that may be designated as part of the LW Group pursuant to the plan for the Internal Restructuring including the Persons listed on Schedule 1.05(a)(iv) (such capital stock or other equity interests, the LW Equity Interests , and such Persons, the LW Entities ), and (B) the Joint Venture Interests;
(v) all interests, rights, claims and benefits of ConAgra and any of its Subsidiaries pursuant to all LW Contracts, including the LW Contracts listed on Schedule 1.05(a)(v) ;
(vi) all Governmental Permits (and all pending applications therefor) that are exclusively used or held for exclusive use in the LW Business;
(vii) all Intellectual Property owned by ConAgra or any of its Subsidiaries exclusively used or held for exclusive use in the LW Business, including the Registered Intellectual Property listed on Schedule 1.05(a)(vii) , including all goodwill related to any of the foregoing and all rights to sell or recover and retain damages and costs and attorneys fees for infringement, misappropriation or other violations of any of the foregoing, whether occurring prior to, on or after the Business Transfer Time (the LW IP Assets ), together with any tangible embodiments thereof;
(viii) (A) all business records to the extent exclusively related to the LW Business, including the corporate minute books and related stock records of the members of the LW Group and the LW Joint Ventures, and employment records of the LW Employees, and (B) all other books, records, ledgers, files, documents and correspondence, in whatever form, that are exclusively related to the LW Business (collectively, the LW Books and Records ); provided , however , that ConAgra will be entitled to retain a copy of the LW Books and Records;
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(ix) all Software exclusively used or held for exclusive use in the LW Business (all of the foregoing, the LW Software );
(x) all goodwill of the LW Business, other than any goodwill associated with the Excluded IP Assets;
(xi) all rights to causes of Action, lawsuits, judgments, claims and demands that are exclusively related to the LW Business or the ownership of the Joint Venture Interests by the LW Group or prior to the Distribution, by the ConAgra Group;
(xii) all Assets expressly allocated to any member of the LW Group pursuant to the Employee Matters Agreement;
(xiii) all rights of SpinCo and the LW Entities under this Agreement or any other Transaction Document or any Ancillary Agreement and the certificates, instruments and Transfer Documents delivered in connection herewith; and
(xiv) all accounts receivable and prepaid assets, in each case, to the extent they exclusively relate (and only to the extent so related) to the LW Business.
(b) Notwithstanding Section 1.05(a) or any other provision hereof, the LW Assets will not in any event include any of the following Assets (the Excluded Assets ):
(i) the Assets listed or described on Schedule 1.05(b)(i) ;
(ii) the Excluded IP Assets;
(iii) all Assets in respect of ConAgra Plans or corresponding to any Liabilities allocated to ConAgra or any of its Affiliates or for which ConAgra is expressly liable pursuant to the Employee Matters Agreement and all Assets in respect of all other compensation and benefit plans sponsored by the ConAgra Group, in each case other than Assets expressly allocated to any member of the LW Group pursuant to the Employee Matters Agreement;
(iv) all financial and Tax records relating to the LW Business that form part of the general ledger of ConAgra or any of its Subsidiaries (other than the members of the LW Group), any work papers of ConAgras auditors and any other Tax records (including accounting records) of ConAgra or any of its Subsidiaries (other than Tax records exclusively related to the members of the LW Group);
(v) except as otherwise provided by Section 3.05 , all rights to insurance policies or practices of ConAgra and its Subsidiaries (including any captive insurance policies, fronted insurance policies, surety bonds or corporate insurance policies or practices, or any form of self-insurance whatsoever, any refunds paid or payable in connection with the cancellation or discontinuance of any such policies or practices and any claims made under such policies);
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(vi) all records prepared by or on behalf of ConAgra or its Subsidiaries relating to the transactions contemplated by this Agreement and all records prepared by or on behalf of ConAgra or its Subsidiaries in connection with the potential divestiture of all or a part of the LW Business or any other business or Asset of ConAgra or its Subsidiaries, including, communications with legal counsel representing ConAgra or its Affiliates and the right to assert the attorney-client privilege with respect thereto;
(vii) all rights of ConAgra or its Affiliates (other than members of the LW Group) under this Agreement or any other Transaction Document or Ancillary Agreements and the certificates, instruments and Transfer Documents delivered in connection therewith;
(viii) all cash and cash equivalents of ConAgra and its Affiliates, except as specifically provided in Schedule 1.05(b)(viii) ; and
(ix) any and all Assets that are expressly contemplated by this Agreement as Assets to be retained by ConAgra or any other member of the ConAgra Group.
1.06 LW Liabilities . (a) For the purposes of this Agreement, LW Liabilities will mean each of the following, regardless of when or where such Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Business Transfer Time, or where or against whom such Liabilities are asserted or determined or whether asserted or determined prior to the date hereof:
(i) any and all Liabilities of ConAgra and its Affiliates (including the members of the LW Group) to the extent relating to, resulting from or arising out of the ownership or use of the LW Assets or the operation or the conduct of the LW Business, whether before, at or after the Business Transfer Time;
(ii) all Liabilities that are provided by this Agreement or any other Transaction Document or any Ancillary Agreement as Liabilities to be assumed by SpinCo or any other member of the LW Group and all Liabilities of SpinCo or any other member of the LW Group under this Agreement or any other Transaction Document or any Ancillary Agreement, including all Liabilities allocated to or expressly assumed by any member of the LW Group pursuant to the Employee Matters Agreement;
(iii) all Liabilities under the LW Contracts;
(iv) all Liabilities to the extent relating to, resulting from or arising out of product liability Actions with respect to, or product returns or recalls of, products of the LW Business;
(v) all Liabilities to the extent relating to, resulting from or arising out of (A) any Environmental Conditions at the LW Facilities or that otherwise relate to, result from or arise out of (1) any Assets to be transferred to the LW Group or (2) the operation or conduct of the LW Business, (B) any presence or Release of Hazardous Materials that occurs at, on, under, or migrating to or from (x) any of the LW Facilities or
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(y) any third-party site, to the extent such presence or Release of Hazardous Materials relate to, result from or arise out of the operation or conduct of the LW Business, (C) any property or facility formerly owned, leased, operated or used in connection with the LW Business, (D) any locations at which any Hazardous Materials generated by, from or in connection with the LW Business or any Asset to be transferred to the LW Group have been transported for treatment, storage, disposal or recycling, or (E) any violation of or remediation or other requirements or liability under any Environmental Law as a result of or relating to the operation or conduct of the LW Business;
(vi) all Liabilities related to, resulting from or arising out of the ownership of the Joint Venture Interests by the LW Group or, prior to the Distribution, the ConAgra Group; and
(vii) all Liabilities listed or described on Schedule 1.06(a)(vii) .
(b) Notwithstanding anything to the contrary in this Agreement, the LW Liabilities will not include the following Liabilities (such Liabilities, the Excluded Liabilities ):
(i) all Liabilities listed or described on Schedule 1.06(b)(i) ;
(ii) all Liabilities to the extent relating to, resulting from or arising out of any Excluded Asset, except to the extent expressly identified as LW Liabilities in Section 1.06(a) ; and
(iii) all Liabilities that are expressly contemplated by this Agreement or any other Transaction Document or any Ancillary Agreement as Liabilities to be retained or assumed by ConAgra or any other member of the ConAgra Group, and all Liabilities of any member of the ConAgra Group under this Agreement or any of the Transaction Documents or any of the Ancillary Agreements.
1.07 Termination of Intercompany Agreements; Settlement of Intercompany Accounts . (a) SpinCo, on behalf of itself and each other member of the LW Group, on the one hand, and ConAgra, on behalf of itself and each other member of the ConAgra Group, on the other hand, hereby terminate any and all Contracts between or among SpinCo or any member of the LW Group, on the one hand, and ConAgra or any member of the ConAgra Group, on the other hand, effective without further action as of the Business Transfer Time, other than this Agreement, the Transaction Documents, the Ancillary Agreements and any other Contract expressly contemplated by this Agreement to be entered into or continued by the Parties or any member of their respective Groups. No such Contract (including any provision thereof which purports to survive termination) will be of any further force or effect after the Business Transfer Time and all parties will be released from all Liabilities thereunder. Each Party will, at the reasonable request of any other Party, take, or cause to be taken, such other actions as may be necessary to effect the foregoing.
(b) ConAgra will have caused all of the intercompany receivables, payables, loans and other accounts, rights and Liabilities between SpinCo and any
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other member of the LW Group, on the one hand, and ConAgra or any other member of the ConAgra Group, on the other hand, in existence as of the Business Transfer Time (collectively, the Intercompany Accounts ) to be (i) settled in full in cash or (ii) otherwise cancelled, terminated or extinguished, in which case the balance will be treated as a contribution to capital or a dividend (in the case of each of clauses (i) and (ii), with no further liability or obligation thereunder), such that, as of the Business Transfer Time, there are no Intercompany Accounts outstanding.
(c) From and after the date hereof, SpinCo will substitute those bonds, guaranties, letters of credit, indemnities, assurances, comfort letters and other arrangements similar to the foregoing issued by any member of the ConAgra Group (other than a member of the LW Group) in support of the LW Business set forth on Schedule 1.07(c) (collectively, ConAgra Support Arrangements ) for bonds, guaranties, letters of credit, indemnities, assurances, comfort letters or such similar arrangements issued by one or more members of the LW Group, such arrangements to be effective as of the Business Transfer Time (or, if not in place as of the Business Transfer Time, as promptly as reasonably practicable thereafter). Such substitution shall include the assumption by SpinCo of, and the release of ConAgra and the members of the ConAgra Group of all of their respective obligations under, each of the ConAgra Support Arrangements.
1.08 Transfers In Violation of Law or Required Consents; Certain Shared Business Contracts . (a) If and to the extent that the consummation of the LW Transfer or Conveyance of Excluded Assets would be a violation of applicable Laws or require any Consent or Governmental Approval in connection with the transactions contemplated hereby that has not been obtained as of the Business Transfer Time, then, notwithstanding any other provision hereof, such Conveyance will automatically be deferred and will not occur until all legal impediments are removed or such Consents and Governmental Approvals have been obtained or ConAgra has received written confirmation from such parties reasonably satisfactory in form and substance to ConAgra confirming that such Consent or Governmental Approval is not required. Notwithstanding the foregoing, any such Asset (x) will not be Conveyed in, or considered part of, the LW Transfer and (y) will still be considered a LW Asset or Excluded Asset, as applicable, and the Person retaining such Asset will thereafter hold such Asset in trust for the benefit, insofar as reasonably possible, of the Person entitled thereto (at such Persons sole expense) until the consummation of the Conveyance thereof. The Parties will use their respective Commercially Reasonable Efforts to (i) continue to seek to remove any legal impediments or secure any contractual Consents required from third parties or Governmental Approval necessary to Convey such Asset (or written confirmation that no such Consent is required) and (ii) develop and implement arrangements to place the Person entitled to receive such Asset, insofar as reasonably possible and to the extent not prohibited by applicable Law or the relevant Contract, in the same position as if such Asset had been Conveyed as contemplated hereby such that all the benefits and burdens relating to such Asset, including possession, use, risk of loss, potential for gain, any Tax Liabilities in respect thereof and dominion, control and command over such Asset, are to inure from and after the Business Transfer Time to such Person. If and when the applicable legal or
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contractual impediments are removed or the applicable Consents or Governmental Approvals are obtained, the Conveyance of the applicable Asset will be effected in accordance with the terms of this Agreement or such applicable Transaction Document or applicable Ancillary Agreement without further consideration. Except with respect to the Assets and Liabilities that are the subject of the Ancillary Agreement, the obligations set forth in this Section 1.08(a) will terminate on the date that is 18 months after the Distribution Date.
(b) The Parties will, and will cause their respective Subsidiaries to, use Commercially Reasonable Efforts to work together (and, if necessary and desirable, to work with the third party to such Shared Business Contract) in an effort to divide, partially assign, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Business Contract, such that (a) a member of the LW Group is the beneficiary of the rights and is responsible for the obligations related to that portion of such Shared Business Contract relating to the LW Business (the LW Portion ), which rights will be a LW Asset and which obligations will be a LW Liability, and (b) a member of the ConAgra Group is the beneficiary of the rights and is responsible for the obligations related to such Shared Business Contract relating to the Retained Business (the ConAgra Portion ), which rights will be an Excluded Asset and which obligations will be an Excluded Liability. If the Parties, or their respective Subsidiaries, as applicable, are not able to enter into an arrangement to formally divide, partially assign, modify and/or replicate such Shared Business Contract as contemplated by the previous sentence, then the Parties shall use their Commercially Reasonable Efforts to develop and implement alternative arrangements to place (x) the LW Group, insofar as reasonably possible, in the same position as if the portion of such Shared Business Contract related to the LW Business had been separated as contemplated hereby such that all the benefits and burdens relating to such portion, including risk of loss, potential for gain, any Tax Liabilities in respect thereof and dominion, control and command over such portion, are to inure from and after the Business Transfer Time to the LW Group and (y) the ConAgra Group, insofar as reasonably possible, in the same position as if the portion of such Shared Business Contract not related to the LW Business had been separated as contemplated hereby such that all the benefits and burdens relating to such portion, including risk of loss, potential for gain, any Tax Liabilities in respect thereof and dominion, control and command over such portion, are to inure from and after the Business Transfer Time to the ConAgra Group. The obligations set forth in this Section 1.08(b) will terminate on the one-year anniversary of the Distribution.
(c) Notwithstanding anything in this Section 1.08 to the contrary, no member of the ConAgra Group nor any of its Affiliates will be required to undertake any action or arrangement contemplated by this Section 1.08 (i) if ConAgra determines in its sole discretion that such arrangement or action would increase the likelihood that the Intended Tax-Free Treatment would not apply to the transactions contemplated by this Agreement or (ii) if such arrangement is not in compliance with applicable Law (or the relevant Shared Business Contract).
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1.09 Evidence of Transfer of LW Assets and LW Liabilities . In furtherance of the Conveyance of LW Assets and assumption of LW Liabilities provided in Sections 1.02(a) and (b) , on or prior to the Business Transfer Time, (a) ConAgra will have executed and delivered, and will have caused its Subsidiaries to execute and deliver, such bills of sale, stock powers, certificates of title, deeds, assignments of Contracts, and other instruments of Conveyance (in each case to the extent applicable and in a form that is consistent with the terms and conditions of this Agreement, and otherwise customary or statutorily required in the jurisdiction in which the relevant Assets are located), as necessary to evidence the Conveyance of all of ConAgras and its Subsidiaries right, title and interest in and to the LW Assets to SpinCo and the other members of the LW Group (it being understood that no such bill of sale, stock power, certificate of title, deed, assignment or other instrument of Conveyance will require ConAgra or any of its Affiliates to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement except to the extent required to comply with applicable local Law, in which case the Parties will enter into such supplemental agreements or arrangements as are effective to preserve the allocation of economic benefits and burdens contemplated by this Agreement) and (b) SpinCo will have executed and delivered such assumptions of LW Liabilities and other instruments of assumption (in each case in a form that is consistent with the terms and conditions of this Agreement, and otherwise customary or statutorily required in the jurisdiction in which the relevant Liabilities are located) as and to the extent reasonably necessary to evidence the valid and effective assumption of the LW Liabilities by SpinCo or the applicable members of the LW Group. All of the foregoing documents contemplated by this Section 1.09 will be referred to collectively herein as the ConAgra Transfer Documents .
1.10 Transfer of Excluded Assets and Assumption of Excluded Liabilities . In furtherance of the Conveyance of Excluded Assets and assumption of Excluded Liabilities provided in Sections 1.02(c) and (d) , on or prior to the Business Transfer Time, (a) SpinCo will have executed and delivered, and will have caused its Subsidiaries to execute and deliver, such bills of sale, stock powers, certificates of title, deeds, assignments of Contracts and other instruments of Conveyance (in each case to the extent applicable and in a form that is consistent with the terms and conditions of this Agreement, and otherwise customary or statutorily required in the jurisdiction in which the relevant Assets are located), as necessary, to evidence the Conveyance of all of SpinCos and its Subsidiaries right, title and interest in and to the Excluded Assets to ConAgra and the other members of the ConAgra Group (it being understood that no such bill of sale, stock power, certificate of title, deed, assignment or other instrument of Conveyance will require SpinCo or any of its Affiliates to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement except to the extent required to comply with applicable local Law, in which case the Parties will enter into such supplemental agreements or arrangements as are effective to preserve the allocation of economic benefits and burdens contemplated by this Agreement) and (b) ConAgra will have executed and delivered such assumptions of Excluded Liabilities and other instruments of assumption (in each case in a form that is consistent with the terms and conditions of this Agreement, and otherwise customary or statutorily required in the jurisdiction in which the relevant Liabilities are located) as and
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to the extent reasonably necessary to evidence the valid and effective assumption of the Excluded Liabilities by ConAgra or the applicable member of the ConAgra Group. All of the foregoing documents contemplated by this Section 1.10 will be referred to collectively herein as the LW Transfer Documents and, together with the ConAgra Transfer Documents, the Transfer Documents .
1.11 LW Transfer . (a) At the Business Transfer Time, or within seven days prior to the Distribution Date, SpinCo will borrow funds in an amount equal to approximately $823.5 million (the Special Cash Amount ). Immediately thereafter and prior to the Distribution, ConAgra and SpinCo shall, subject to the terms and conditions set forth herein, effect the LW Transfer as described by this Section 1.11(a) . ConAgra shall Convey the LW Assets to SpinCo as contemplated by Section 1.02(a) . As consideration for such Conveyance, no later than immediately prior to the Distribution, SpinCo shall:
(i) issue and deliver to ConAgra a number of shares of SpinCo Common Stock equal to 146,046,295 (the Stock Issuance );
(ii) pay the Special Cash Amount in immediately available funds to one or more accounts of ConAgra designated in writing by ConAgra (the Special Cash Payment );
(iii) issue SpinCo Securities to ConAgra in an aggregate principal amount equal to $1,540,999,000 (the Special SpinCo Securities Issuance ); and
(iv) assume the LW Liabilities in accordance with the requirements of this Agreement.
(b) ConAgra shall maintain any funds received pursuant to payment of the Special Cash Payment in a non-interest bearing segregated bank account (the Segregated Account ). Within 12 months following the Distribution, ConAgra will distribute the cash held in the Segregated Account exclusively to (i) ConAgras creditors in retirement of outstanding ConAgra indebtedness or (ii) to ConAgras shareholders in repurchase of, or distribution with respect to, its shares.
1.12 Waiver of Bulk-Sales Laws . Each of ConAgra and SpinCo hereby waives compliance by each member of their respective Group with the requirements and provisions of the bulk-sale or bulk-transfer Laws of any jurisdiction that may otherwise be applicable with respect to the Conveyance of any or all of the Assets to any member of the ConAgra Group or LW Group, as applicable.
1.13 Disclaimer; No Representations or Warranties . Except as expressly set forth in this Agreement or in any of the other Transaction Documents or any of the Ancillary Agreements, each Party on behalf of itself and each of its Affiliates understands and agrees that neither Party nor any of its Affiliates is making any representation or warranty of any kind whatsoever, express or implied, to the other party or any of its Affiliates or to any other Person in respect of the contemplated transactions or any information that may have been exchanged or provided pursuant to this
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Agreement or any other Transaction Document or any Ancillary Agreement, and that all LW Assets are being assigned and transferred, and all LW Liabilities are being assumed, on an as is, where is basis. Without limiting the generality of the foregoing, (i) neither ConAgra nor any of its Affiliates has made or shall be deemed to have made any representations or warranties in any presentation or written information relating to the LW Business given or to be given in connection with the contemplated transactions or in any filing made or to be made by or on behalf of ConAgra or any of its Affiliates with any Governmental Authority, and no statement made in any such presentation or written materials, made in any such filing or contained in any such other information shall be deemed a representation or warranty hereunder or otherwise, and (ii) ConAgra, on its own behalf and on behalf of the other members of the ConAgra Group, expressly disclaims any implied warranties, including warranties of fitness for a particular purpose and warranties of merchantability. SpinCo acknowledges and agrees that SpinCo specifically disclaims that it is relying upon or has relied upon any representations or warranties that have been made by ConAgra or any other Person relating to the LW Business, and acknowledges and agrees that ConAgra has specifically disclaimed and does hereby specifically disclaim any representation or warranty made by ConAgra or any other person relating to the LW Business.
II. THE DISTRIBUTION
2.01 Actions Prior to the Distribution . (a) Subject to the conditions specified in Section 2.02 and subject to Section 2.05 , each of the Parties will use reasonable best efforts to consummate the Distribution. Such actions will include those specified in this Section 2.01 .
(b) Prior to the Distribution, each of the Parties will have executed and delivered all Transaction Documents and all Ancillary Agreements to which it is intended to be a party, and will have caused the other members of the LW Group or the ConAgra Group, as applicable, to execute and deliver any Transaction Documents or Ancillary Agreements to which such Persons are intended to be parties.
(c) Prior to the Distribution, SpinCo will have mailed the Information Statement to the Record Holders.
(d) SpinCo will prepare, file with the Commission and use reasonable best efforts to cause to become effective any registration statements or amendments thereto required to effect the establishment of, or amendments to, any employee benefit and other plans necessary or appropriate in connection with the transactions contemplated by this Agreement or any of the Transaction Documents or any of the Ancillary Agreements.
(e) Each of the Parties will take all such actions as may be necessary or appropriate under the securities or blue sky Laws of the states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Distribution.
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(f) SpinCo will prepare and file, and will use reasonable best efforts to have approved prior to the Distribution, an application for the listing on NYSE of the SpinCo Common Stock to be distributed in the Distribution, subject to official notice of listing.
(g) Prior to the Distribution, the existing directors of SpinCo will duly elect the individuals listed as members of the SpinCo board of directors in the Information Statement, and such individuals will become the members of the SpinCo board of directors effective as of no later than immediately prior to the Distribution; provided , however , that to the extent required by any Law or requirement of NYSE or any other national securities exchange, as applicable, one independent director will be appointed by the existing board of directors of SpinCo to begin his or her term prior to the Distribution in accordance with such Law or requirement.
(h) Prior to the Distribution, each individual who will be an employee of any member of the ConAgra Group after the Distribution and who is a director or officer of any member of the LW Group shall have resigned or been removed from each such directorship or office held by such person, effective no later than immediately prior to the Distribution.
(i) Immediately prior to the Distribution, SpinCos Restated Certificate of Incorporation and Restated Bylaws, each in substantially the form filed as an exhibit to the Form 10, will be in effect.
(j) The Parties will, subject to Section 2.05 , take all reasonable steps necessary and appropriate to cause the conditions set forth in Section 2.02 to be satisfied and to effect the Distribution on the Distribution Date.
2.02 Conditions to the Distribution . The obligations of the Parties to consummate the Distribution will be conditioned on the satisfaction, or waiver by the ConAgra Board, of the following conditions:
(a) The ConAgra Board, in its sole and absolute discretion, shall have authorized and approved the Separation and the Distribution and shall not have withdrawn such authorization and approval;
(b) The ConAgra Board shall have declared the dividend of SpinCo Common Stock to the Record Holders;
(c) The Commission shall have declared the Form 10 effective under the Exchange Act, no stop order suspending the effectiveness of the Form 10 shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission;
(d) The NYSE or another national securities exchange approved by the ConAgra Board shall have accepted the SpinCo Common Stock for listing, subject to official notice of issuance;
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(e) The Internal Restructuring and the LW Transfer shall have been consummated in all material respects;
(f) ConAgra shall have received a written opinion from Davis Polk & Wardwell LLP, tax counsel to ConAgra, to the effect that (i) the LW Transfer, taken together with the Distribution, will qualify as a tax-free reorganization pursuant to Section 368(a)(1)(D) of the Code, and that each of ConAgra and SpinCo will be a party to the reorganization within the meaning of Section 368(b) of the Code, (ii) the Distribution, as such, will qualify as a distribution of SpinCo stock to ConAgras shareholders pursuant to Section 355 of the Code and (iii) the Special Cash Payment will qualify as money distributed to ConAgra creditors or shareholders in connection with the reorganization for purposes of Section 361(b) of the Code;
(g) ConAgra shall have received a written opinion from a nationally recognized financial advisory firm as may be reasonably selected by the ConAgra Board that, as of the Distribution Date, (i) SpinCo will not be insolvent, (ii) SpinCo will not be left with unreasonably small capital, (iii) SpinCo will not have incurred debts or other Liabilities beyond its ability to pay such debts or other Liabilities as they mature and (iv) the capital of SpinCo will not be impaired;
(h) No order, injunction or decree that would prevent the consummation of the Distribution shall be threatened, pending or issued (and still in effect by any Governmental Authority of competent authority, no other legal restraint or prohibition preventing the consummation of the Distribution shall be in effect, and no other event outside the control of ConAgra shall have occurred or failed to occur that prevents the consummation of the Distribution;
(i) No other events or developments shall have occurred prior to the Distribution that, in the judgment of the ConAgra Board, would result in the Distribution having a material adverse effect on ConAgra or ConAgras stockholders; and
(j) The actions set forth in Section 2.01(b) , (c) , (g) , (h) and (i) shall have been completed in all material respects.
The foregoing conditions may be waived only by the ConAgra Board, in its sole and absolute discretion, are for the sole benefit of ConAgra and will not give rise to or create any duty on the party of the ConAgra Board to waive or not waive such conditions or in any way limit the right of termination of this Agreement set forth in Section 6.02 or alter the consequences of any such termination from those specified in Section 6.02 . Any determination made by the ConAgra Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 2.02 will be conclusive.
2.03 The Distribution . (a) SpinCo will cooperate with ConAgra to accomplish the Distribution and will, at the direction of ConAgra, use reasonable best efforts to promptly take any and all actions necessary or desirable to effect the Distribution. Each of the Parties will provide, or cause the applicable member of its Group to provide, to the transfer agent or the exchange agent (the Exchange Agent ) all documents and information required to complete the Distribution.
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(b) Subject to the terms and conditions set forth in this Agreement, (i) on or prior to the Distribution Date, for the benefit of and distribution to the Record Holders, ConAgra will deliver to the Exchange Agent all of the issued and outstanding shares of SpinCo Common Stock then owned by ConAgra and book-entry authorizations for such shares and (ii) on the Distribution Date, ConAgra will instruct the Exchange Agent to (A) distribute to each Record Holder (or such Record Holders bank, brokerage firm or other nominee on such Record Holders behalf) electronically, by direct registration in book-entry form, the number of whole shares of SpinCo Common Stock to which such Record Holder is entitled based on the Distribution Ratio and (B) receive and hold for and on behalf of each Record Holder, the number of fractional shares of SpinCo Common Stock to which such Record Holder is entitled based on the Distribution Ratio. The Distribution will be effective at the Distribution Effective Time. On or as soon as practicable after the Distribution Date, the Exchange Agent will mail to each Record Holder an account statement indicating the number of whole shares of SpinCo Common Stock that have been registered in book-entry form in such Record Holders name.
(c) ConAgra and SpinCo, as the case may be, will instruct the Exchange Agent, as applicable, to deduct and withhold from the consideration otherwise required to be distributed pursuant to this Agreement such amounts as are required to be deducted and withheld from such consideration under the Code or any provision of state, local or foreign Tax Law. Any withheld amounts will be treated for all purposes of this Agreement as having been distributed to the Persons otherwise entitled thereto.
2.04 Fractional Shares . ConAgras stockholders holding a number of ConAgra Common Stock, on the Record Date, which would entitled such stockholders to receive less than one whole share of SpinCo Common Stock in the Distribution will receive cash in lieu of fractional shares. Fractional shares of SpinCo Common Stock will not be distributed in the Distribution nor credited to book-entry accounts. The Exchange Agent and ConAgra will, as soon as practicable after the Distribution Date, (a) determine the number of whole and fractional shares of SpinCo Common Stock that each Record Holder is entitled to receive in the Distribution, (b) aggregate all such fractional shares into whole shares and sell the whole shares obtained thereby in open market transactions at then-prevailing trading prices on behalf of Record Holders to whom fractional share interests were distributed in the Distribution and (c) distribute to each such Record Holder, or for the benefit of each beneficial owner of fractional shares, such Record Holders or beneficial owners ratable share of the net proceeds of such sales, based upon the average gross selling price per share of SpinCo Common Stock after making appropriate deductions for any amount required to be withheld under applicable Tax Law and less any brokers charges, commissions or transfer Taxes. The Exchange Agent, in its sole discretion, will determine the timing and method of selling such shares, the selling price of such shares and the broker-dealer to which such shares will be sold; provided , however , that the designated broker-dealer is not an Affiliate of ConAgra or SpinCo. Neither ConAgra nor SpinCo will pay any interest on the proceeds from the sale of such shares.
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2.05 Sole Discretion of the ConAgra Board . The ConAgra Board will, in its sole and absolute discretion, determine the Record Date, the Distribution Date and all terms of the Distribution, including the form, structure and terms of any transactions and/or offerings to effect the Distribution and the timing of and conditions to the consummation thereof. In addition, and notwithstanding anything to the contrary set forth in this Agreement, the ConAgra Board, in its sole and absolute discretion, may at any time and from time to time until the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution, including by accelerating or delaying the timing of the consummation of all or part of the Distribution.
2.06 Plan of Reorganization . This Agreement constitutes a plan of reorganization under Treasury Regulation Section 1.368-2(g) with respect to the transactions contemplated hereby.
III. COVENANTS
3.01 Further Assurances; Efforts To Obtain Consents . In addition to the actions specifically provided for elsewhere in this Agreement or in any other Transaction Document, each Party will cooperate with each other and use (and will cause their respective Subsidiaries and Affiliates to use) their reasonable best efforts, prior to, at and after the Distribution, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on its part under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Agreement and the other Transaction Documents as promptly as practicable; provided , however , that neither ConAgra nor SpinCo will be required to make any non-de minimis payments, incur any non-de minimis Liability or offer or grant any non-de minimis accommodation (financial or otherwise) to any third party in connection with obtaining any Consent or Governmental Approval. Except as otherwise expressly contemplated by another provision of the Transaction Documents or the Ancillary Agreements, each Party will bear its respective costs and expenses incurred in connection with obtaining such Consents and Governmental Approvals. Without limiting the foregoing, upon the reasonable request of a Party hereto, the other Party shall, and shall cause its respective Affiliates to, execute, acknowledge and deliver all such further assurances, deeds, assignments, conveyances, powers of attorney and other instruments and papers as may be required for the transfer to a member of the LW Group of direct or indirect ownership of the LW Assets and to a member of the ConAgra Group ownership of the Excluded Assets and the assumption by the LW Group of the LW Liabilities and the assumption by the ConAgra Group of the Excluded Liabilities, as contemplated by this Agreement (it being understood that no such assurances, deeds, assignments, conveyances, powers of attorney or other instruments or papers will require ConAgra or any of its Affiliates to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement).
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3.02 Non-Solicit . (a) For a period of 24 months following the Distribution Date, ConAgra will not, and will cause its Subsidiaries not to, without first discussing with SpinCos Chief Human Resources Officer (or equivalent officer) or such officers delegee and obtaining the prior written approval of SpinCo, directly or indirectly solicit (or cause to be directly or indirectly solicited) for employment any Transferred Employees who are employed at the level of Senior Manager (or equivalent) or above; provided that the foregoing restriction will not apply to (i) generalized searches for employees through media advertisements of general circulation, employment search firms, open job fairs or other similar means which are not specifically targeted at such Transferred Employees or hiring any person that responds to such generalized search or (ii) any such Transferred Employees whose employment is terminated by SpinCo or any of its Affiliates (including any member of the LW Group) or who voluntarily terminates his or her employment prior to any such solicitation by Parent or its Subsidiaries.
(b) For a period of 24 months following the Distribution Date, SpinCo will not, and will cause its Affiliates (including any member of the LW Group) not to, without first discussing with ConAgras Chief Human Resources Officer (or equivalent) or such officers delegee and obtaining the prior written approval of ConAgra, directly or indirectly solicit (or cause to be directly or indirectly solicited) for employment any person who is at the time of such solicitation an employee of ConAgra or any of its Subsidiaries (other than any LW Business employee), in any case, who is employed at the level of Senior Manager or above; provided that (i) the foregoing restriction will not apply to generalized searches for employees through media advertisements of general circulation, employment search firms, open job fairs or other similar means which are not specifically targeted at such persons or hiring any person who responds to such generalized search, (ii) any such employee of ConAgra or any of its Subsidiaries (other than any LW Business employee) whose employment is terminated by ConAgra or any of its Subsidiaries (including any member of the ConAgra Group) or who voluntarily terminates his or her employment prior to any such solicitation by SpinCo or its Subsidiaries.
3.03 Access to Information; Cooperation .
(a) SpinCo to ConAgra . Subject to Section 3.03(e) , from the Distribution Date until the five-year anniversary of the Distribution Date, upon reasonable request, SpinCo will, and will cause the members of the LW Group to: (i) promptly afford to ConAgra and its Representatives reasonable access upon reasonable prior notice during normal business hours, to its offices, properties, agreements, books, records, employees, auditors and other agents (giving consideration to business demands of such employees, auditors and other agents), to the extent relating to the LW Business prior to the Distribution Effective Time, and provide copies of such Information (including any Shared Information in its possession or under its control) as ConAgra may reasonably request for any proper purpose, including in connection with (A) the preparation of any financial statements or reports or the satisfaction of its public reporting obligations, (B) to the extent requested to permit ConAgra or any of its Affiliates to comply with their financial reporting, accounting or
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auditing obligations with respect to any period ending before the Distribution Date, (C) any judicial, quasi-judicial, administrative or audit proceeding or Action related to the conduct or ownership of the LW Group for which ConAgra or such Affiliate has retained any Liability under this Agreement, (D) the defense or pursuit of any claims, allegations or actions that relate to or may relate to any Excluded Assets, Excluded Liabilities or claim for indemnification, and (E) otherwise to the extent reasonably required by ConAgra; and (ii) use reasonable best efforts to cooperate in the defense or pursuit of any Excluded Asset or Excluded Liability or any claim or action that relates to occurrences involving the LW Business or the Retained Business prior to the Distribution Date; provided that ConAgra will reimburse the LW Group for any reasonable out-of-pocket expenses (including fees and expenses of attorneys, accountants and other agents or representatives) incurred by any member of the LW Group in connection with any such defense, claim or action. ConAgra agrees to treat and hold as confidential all Information provided or otherwise made available to it or any of its Representatives under this Section 3.03(a) in accordance with the provisions of Section 3.04 .
(b) ConAgra to SpinCo . Subject to Section 3.03(e) , from the Distribution Date until the five-year anniversary of the Distribution Date, upon reasonable request, ConAgra will, and will cause the members of the ConAgra Group to: (i) promptly afford to SpinCo and its Representatives reasonable access upon reasonable prior notice during normal business hours, to its offices, properties, agreements, books, records, employees, auditors and other agents (giving consideration to business demands of such employees, auditors and other agents), to the extent relating to the LW Business prior to the Distribution Effective Time, and provide copies of such Information (including any Shared Information in its possession or under its control) as SpinCo may reasonably request for any proper purpose, including in connection with (A) the preparation of any financial statements or reports or the satisfaction of its public reporting obligations, (B) to the extent requested to permit SpinCo or any of its Affiliates to comply with their financial reporting, accounting or outstanding obligations, (C) any judicial, quasi-judicial, administrative or audit proceeding or Action related to the conduct or ownership of the LW Group for which SpinCo or such a member of the LW Group has assumed any Liability under this Agreement, (D) the defense or pursuit of any claims, allegations or actions that relate to or may relate to any LW Assets, LW Liabilities or claim for indemnification, and (E) otherwise to the extent reasonably required by SpinCo; and (ii) use reasonable best efforts to cooperate in the defense or pursuit of any LW Asset or LW Liability or any claim or action that relates to occurrences involving the LW Business prior to the Distribution Date; provided that SpinCo will reimburse the ConAgra Group for any reasonable out-of-pocket expenses (including fees and expenses of attorneys, accountants and other agents or representatives) incurred by any member of the ConAgra Group in connection with any such defense, claim or action. SpinCo agrees to treat and hold as confidential all Information provided or otherwise made available to it or any of its Representatives under this Section 3.03(b) in accordance with the provisions of Section 3.04 .
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(c) Shared Information . Except as otherwise provided in the Transition Services Agreement or as prohibited by applicable Law, each Party, on behalf of its respective Group, will provide, or cause to be provided, to the other Partys Group, at any time after the Distribution Date and until the seven-year anniversary of the Distribution Date, as soon as reasonably practicable after written request therefor, any Shared Information in its possession or under its control. Each of ConAgra and SpinCo agree to make their respective personnel available during regular business hours to discuss the Information exchanged pursuant to this Section 3.03 . Prior to the Distribution, each Party will take measures that it reasonably determines in good faith to be appropriate to ensure that any competitively sensitive Shared Information from one Party is not disclosed to the other Partys personnel involved in a competing business.
(d) Reimbursement . The Party requesting Information will reimburse the other Party for the reasonable third-party out-of-pocket costs and expenses (including attorneys fees, but excluding reimbursement for general overhead, salaries and employee benefits (other than reasonable administrative overhead directly attributable to requests for access made by or on behalf of the Party requesting access (e.g., overtime))), if any, of creating, gathering and copying such Information, to the extent that such costs are reasonably incurred by the other Party of its Representatives for the benefit of the requesting Party.
(e) No Obligation to Disclose . Notwithstanding anything to the contrary contained herein, nothing in this Section 3.03 will require (i) ConAgra or SpinCo, as applicable, to provide the other Party or its Representatives with access to (A) personnel records of employees relating to individual performance or evaluation records, medical histories or other Information which, in the disclosing partys good faith opinion, is sensitive or the disclosure of which could subject such party or its Affiliates to risk of liability or violation of any data privacy Laws, (B) Information the disclosure of which, in the disclosing partys reasonable good faith opinion (x) would conflict with confidentiality obligations to which such Party or any of its Affiliates is bound, (y) would reasonably be expected to result in the forfeiture or waiver of any attorney-client or similar privilege, or (z) would violate an applicable Law, provided that , in the case of each of clause (x), (y) and (z), the disclosing party will use Commercially Reasonable Efforts to provide the other Party, to the extent possible, with access to the relevant Information in a manner that would not reasonably be expected to conflict with confidentiality obligations, result in the forfeiture or waiver of any such attorney-client or similar privilege, or violate applicable Law, (ii) either Partys independent accountants to make available to the other party or its Representatives any work papers unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountants or (iii) either ConAgra or SpinCo to provide any cost or pricing Information for any of its products that compete directly with the other Partys products. In the event that a Party relies upon this Section 3.03(e) in not providing the other Party with any information or material requested, such non-providing Party shall be required to promptly notify the other Party that it has determined to not provide information or materials pursuant to this Section 3.03(e) .
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(f) Ownership of Information . Except as expressly provided in this Agreement or other Transaction Document or an Ancillary Agreement, no Party or member of such Partys Group grants or confers rights of license or any other rights in any Information owned by any member of such Partys Group to any member of the other Partys Group hereunder. Any Information owned by a Party that is provided to the other Party pursuant to this Section 3.03 will remain the property of the Party that owned and provided such Information. Each Party will, and will cause members of their respective Groups to, remove and destroy any hard drives or other electronic data storage devices from any computer or server that is reasonably likely to contain Information that is protected by this Section 3.03 and that is transferred or sold to a third party or otherwise disposed of in accordance with Section 3.03(g) , unless required by Law or bona fide document retention policies to retain such materials.
(g) Record Retention . Each Party agrees to use its Commercially Reasonable Efforts to retain all Information that relates to the operations of SpinCo and the LW Business or the LW Joint Ventures in its respective possession or control at the Business Transfer Time and at the Distribution in accordance with their respective then existing document retention policies, as such policies may be amended from time to time.
3.04 Confidentiality . (a) From and after the Distribution, each of the Parties will hold, and will cause the other members of its Group to hold, in strict confidence, with at least the same degree of care that it applies to its own business sensitive and proprietary information, all business sensitive or proprietary Information concerning or belonging to the members of the other Group (such Information, Confidential Information ) obtained by it prior to the Distribution or furnished to it by any member of the other Group pursuant to this Agreement or any Transaction Document or any Ancillary Agreement. Neither Party will (and each Party will cause the other members of its Group not to) disclose any Confidential Information to any other Person, except (i) to the extent that disclosure is compelled by subpoena or other compulsory disclosure notice from a Governmental Authority or, in the opinion of ConAgras or SpinCos counsel (as the case may be), by other requirements of Law, but only after compliance with Section 3.04(b) , (ii) to the extent such Party can show that such Confidential Information was (A) in the public domain through no fault of such Party or any member of such Partys Group or any of its respective directors, officers, employees, agents, accountants, counsel and other advisors and representatives, (B) later lawfully acquired from other sources by such Party (or any member of such Partys Group), which sources are not themselves bound by a confidentiality obligation or (C) independently generated without reference to any proprietary or Confidential Information of the disclosing Party or the other members of its Group or (iii) to its directors, officers, employees, agents, accountants, counsel and other advisors and representatives who need to know such Information (who will be advised of their obligations hereunder with respect to such Information in advance of its disclosure to such persons). Neither Party will (and each Party will cause the other members of its Group not to) use any Confidential Information for any purpose other than for which it was disclosed by any member of the other Group.
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(b) Upon any member of the LW Group or the ConAgra Group receiving any subpoena or other compulsory disclosure notice from a Governmental Authority that requests disclosure of Confidential Information that is subject to the confidentiality provisions of this Section 3.04 , the recipient of the notice will promptly provide to ConAgra, in the case of receipt by a member of the LW Group, or to SpinCo, in the case of receipt by a member of the ConAgra Group, a copy of such notice and an opportunity to seek reasonable protective arrangements. In the event that such appropriate protective arrangements are not obtained, the Person that is required to disclose such Confidential Information will furnish, or cause to be furnished, only that portion of such Confidential Information that is legally required to be disclosed and will use reasonable best efforts to ensure that confidential treatment is accorded such Confidential Information.
3.05 Insurance Matters . From and after the Distribution, the members of the LW Group will cease to be insured by insurance policies of any ConAgra Group member or by any of ConAgra Group members self-insurance programs, and ConAgra and such other ConAgra Group members, as applicable, will retain all rights to control such insurance policies and self-insurance programs, including the right to exhaust, settle, release, commute, buy back or otherwise resolve disputes with respect to any of its insurance policies and self-insurance programs. The Parties acknowledge that the members of the LW Group, their directors, officers or other employees and the LW Business (collectively, the LW Insureds ) may be entitled to the benefit of coverage under the insurance policies made available through ConAgra Group members as described on Schedule 3.05 under the heading Retained Policies (the Retained Policies ), in each case with respect to acts, facts, circumstances or omissions occurring prior to Distribution ( Pre-Distribution Occurrences ), and ConAgra hereby authorizes any LW Insured to report (at such LW Insureds sole cost and expense) any and all Pre-Distribution Occurrences arising in connection with such LW Insured to the applicable insurance providers to the extent permitted under the Retained Policies, and where not permitted, agrees to make such report on the LW Insureds behalf ( Retained Policy Claims ), and in either case the LW Insured will provide notice to ConAgra of any such Retained Policy Claim. With respect to Retained Policy Claims made pursuant to the preceding sentence ConAgra will, and will cause its respective Affiliates to, use Commercially Reasonable Efforts to assist any LW Insured in obtaining the benefit of the applicable insurance coverage and pay such benefit, if any, to such LW Insured (net of any Recovery Costs incurred by ConAgra, as a result of the same); provided that, (x) SpinCo will be fully liable for all uninsured, self-insured or fronted amounts in respect of any Retained Policy Claims, and (y) such LW Insured agrees to reimburse ConAgra promptly upon request for all out-of-pocket and documented costs or expenses incurred by ConAgra or any ConAgra Affiliate in connection with making or pursuing any claim pursuant to this Section 3.05 , including the costs of filing a claim and any deductibles, premium increases or other amounts that are or become payable by ConAgra or any ConAgra Affiliate under the applicable insurance policies or self-insurance programs as a result of claims made pursuant to this Section 3.05 (such costs and expenses referred to in this clause (y), Recovery Costs ). With respect to Pre-Distribution Occurrences, ConAgra (with respect to the Retained Policies) will maintain the directors and officers insurance coverage in effect as of the Distribution Date, or substantially similar
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coverage, in full force and effect. Notwithstanding the forgoing, this Section 3.05 shall not apply to insurance coverage relating to workers compensation, which is addressed in the Employee Matters Agreement. For purposes of this Agreement, the following will not be considered insurance available to SpinCo: (A) any deductible payable by ConAgra; (B) any retention payable by ConAgra; (C) any coinsurance payable by ConAgra; and (D) any coverage that ultimately will be payable or reimbursable by ConAgra through any arrangement, including an insurance-fronting arrangement, a fronted insurance policy, or a retrospective rating program.
3.06 Privileged Matters . (a) The Parties acknowledge and agree that the LW Groups attorney-client privilege, attorney work-product protection and expectation of client confidence with respect to any communications ( Privileged Communications ) concerning any proposed sale of the LW Business or any other transaction contemplated by this Agreement or any of the other Transaction Documents or any of the Ancillary Agreements (such Privileged Communications, Privileged Transaction Communications ), and all information and documents covered by such privilege, protection or expectation shall be retained and controlled by ConAgra, and may be waived only by ConAgra. The Parties acknowledge and agree that the Privileged Transaction Communications shall not be controlled, owned, used, waived or claimed by the LW Group upon consummation of the Distribution; and in the event of a dispute between a member of the LW Group and a third party or any other circumstance in which a third party requests or demands that the member of the LW Group produce Privileged Transaction Communications, SpinCo shall cause such member of the LW Group to assert such attorney-client privilege on behalf of the applicable member of ConAgra Group to prevent disclosure of Privileged Transaction Communications to such third party.
(b) The Parties acknowledge and agree that Privileged Communications concerning general business matters related to the LW Business and the LW Group and arising prior to the Distribution for the benefit of both ConAgra and the LW Group (such Privileged Communications, Privileged Business Communications ) shall be subject to a joint privilege and protection between ConAgra, on the one hand, and the LW Group, on the other hand, and ConAgra and the LW Group shall have equal right to assert such joint privilege and protection and no such joint privilege or protection may be waived by (i) ConAgra without the prior written consent of such member of the LW Group; or (ii) by any member of the LW Group without the prior written consent of ConAgra; provided , however , that any such Privileged Business Communications, whether arising prior to, or after the Distribution Date, with respect to any matter for which a Party hereto has an indemnification obligation hereunder, shall be subject to the sole control of such Party which shall be solely entitled to control the assertion or waiver of the privilege or protection, whether or not such Privileged Business Communications are in the possession of or under the control of such Party.
(c) Upon receipt by SpinCo or any of its Affiliates of any subpoena, discovery or other request from any third party that calls for or would be reasonably expected to call for the production or disclosure of Privileged Transaction
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Communications or if SpinCo or any of its Affiliates obtains knowledge that any current or former employee of SpinCo receives any subpoena, discovery or other request from any third party that calls for or would be reasonably expected to call for the production or disclosure of Privileged Transaction Communications, SpinCo will promptly notify ConAgra of the existence of the request and will provide ConAgra a reasonable opportunity to assert any rights it may have under this Section 3.06 or otherwise to prevent the production or disclosure of such Privileged Transaction Communications. SpinCo will not, and will cause its Affiliates not to, produce or disclose to any third party any of the Privileged Transaction Communications under this Section 3.06 unless (i) ConAgra has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an Order finding that the Privileged Transaction Communications are not entitled to protection from disclosure under any applicable privilege, doctrine or rule.
(d) Upon receipt by either Party or any of their respective Affiliates of any subpoena, discovery or other request from any third party that calls for or would be reasonably expected to call for the production or disclosure of Privileged Business Communications or if either Party obtains knowledge that any current or former employee of such Party receives any subpoena, discovery or other request from any third party that calls for or would be reasonably expected to call for the production or disclosure of Privileged Business Communications, such Party will promptly notify the other Party of the existence of the request and will provide such other Party a reasonable opportunity to assert any rights it may have under this Section 3.06 or otherwise to prevent the production or disclosure of such Privileged Business Communications. Neither Party will, and will cause its respective Affiliates not to, produce or disclose to any third party any of the Privileged Business Communications under this Section 3.06 unless (i) the other Party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an Order finding that the Privileged Business Communications are not entitled to protection from disclosure under any applicable privilege, doctrine or rule.
(e) Neither ConAgra nor SpinCo will, and will cause their respective Affiliates not to, produce or disclose to any third party any of the Privileged Business Communications under this Section 3.06 unless (A) the other Party has provided its express written consent to such production or disclosure or (B) a court of competent jurisdiction has entered an Order finding that the Privileged Business Communications are not entitled to protection from disclosure under any applicable privilege, doctrine or rule.
(f) The access to Information, witnesses and individuals being granted pursuant to Section 3.03 and the disclosure to ConAgra and SpinCo of Privileged Communications relating to the LW Business pursuant to this Agreement in connection with the transactions contemplated hereby will not be asserted by ConAgra or SpinCo to constitute, or otherwise deemed, a waiver of any privilege that has been or may be asserted under this Section 3.06 or otherwise. Nothing in this Agreement will operate to reduce, minimize or condition the rights granted to ConAgra and SpinCo in, or the obligations imposed upon ConAgra and SpinCo by, this Section 3.06 .
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3.07 Names and Marks . (a) Except as provided in, contemplated by or required in connection with the provision of services or licenses pursuant to any Transaction Document or any Ancillary Agreement or as provided in this Section 3.07 , as of the Distribution (i) the LW Group shall not have any right to use or display the ConAgra Names and Marks in any form and (ii) the ConAgra Group shall not have any right to use or display the LW Names and Marks in any form; provided , however , that (A) to the extent such ConAgra Names and Marks were used or displayed by any member of the LW Group prior to the Distribution, the members of the LW Group shall, as soon as reasonably practicable, but in any event within 18 months after the Distribution, at their expense, cease all use or display of all ConAgra Names and Marks and shall remove any and all references to the ConAgra Names and Marks on LW Assets (including on business cards, stationary, commercial signs and similar identifiers), (B) to the extent such LW Names and Marks were used or displayed by any member of the ConAgra Group prior to the Distribution, the members of the ConAgra Group shall, as soon as reasonably practicable, but in any event within 18 months after the Distribution, at their expense, cease all use or display of all LW Names and Marks and shall remove any and all references to the LW Names and Marks on Excluded Assets, (C) the LW Group shall have the right to continue to use the ConAgra Names and Marks in perpetuity to the extent they are incorporated into historical memorabilia, awards, and the like prior to the Distribution, and (D) the ConAgra Group shall have the right to continue to use the LW Names and Marks in perpetuity to the extent they are incorporated into historical memorabilia, awards, and the like prior to the Distribution. In addition, each Party shall have the right to use the others respective Names and Marks in perpetuity to the extent they are incorporated into materials that speak generally to the history of the respective companies.
(b) Notwithstanding the foregoing, nothing contained in this Agreement will prevent any Party (or any member of its respective Group) from using the others Names and Marks in documents intended to be filed with Governmental Authorities, in materials intended for distribution to such Partys stockholders or in any other communication (including correspondence) in any medium that describes the current or former relationship between the Parties (or members of their respective Groups).
3.08 Joint Defense . In the event that both a member of the ConAgra Group and a member of the LW Group are defendants in the same Action, upon reasonable request of a member of either Group, the appropriate member or members of each such Group will enter into a written joint defense agreement in a form reasonably acceptable to such Parties.
IV. INDEMNIFICATION; LIMITATION OF LIABILITY
4.01 Remedies . (a) From and after the Distribution, the sole and exclusive remedy of a Party with respect to any and all claims relating to this Agreement, the LW Business, the LW Assets, the LW Liabilities, the Excluded Assets, the Excluded Liabilities, the LW Entities or the transactions contemplated by this Agreement will be pursuant to the indemnification provisions set forth in this Article IV or, in the case of indemnification claims for Taxes addressed in the Tax Matters Agreement, the Tax
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Matters Agreement, or in the case of indemnification claims addressed in the Transition Services Agreement, the Transition Services Agreement, or in the case of indemnification claims addressed in the Reverse TSA, the Reverse TSA. In furtherance of the foregoing, each Party hereby waives, from and after the Distribution, any and all rights, claims and causes of action (other than pursuant to the indemnification provisions set forth in this Article IV , the Tax Matters Agreement, the Transition Services Agreement, or the Reverse TSA, and other than claims of, or causes of action arising from, fraud and except for seeking specific performance or other equitable relief to require a Party to perform its obligations under this Agreement to the extent permitted hereunder and except as otherwise provided in any other Transaction Document) that such Party or its Affiliates may have against the other Party or any of its Affiliates, or their respective directors, officers and employees, arising under or based upon any applicable Laws and arising out of the transactions contemplated by this Agreement, including pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. and other Environmental Laws.
(b) Notwithstanding any other provision hereof, from and after the Distribution, the sole and exclusive remedy of the ConAgra Group and SpinCo with respect to any and all indemnification claims for Taxes addressed in the Tax Matters Agreement will be as set forth in the Tax Matters Agreement.
4.02 Releases . (a) SpinCo Release . Except as provided in Section 4.02(c) , effective as of the Business Transfer Time, SpinCo does hereby, for itself and each other member of the LW Group, and their respective successors and assigns, remise, release and forever discharge the ConAgra Indemnified Parties from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur at or before the Business Transfer Time or any conditions existing or alleged to have existed at or before the Business Transfer Time, including in connection with the transactions and all other activities to implement the LW Transfer.
(b) ConAgra Release . Except as provided in Section 4.02(c) , effective as of the Business Transfer Time, ConAgra does hereby, for itself and each other member of the ConAgra Group, and their respective successors and assigns, remise, release and forever discharge the LW Indemnified Parties from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur at or before the Business Transfer Time or any conditions existing or alleged to have existed at or before the Business Transfer Time, including in connection with the transactions and all other activities to implement any of the LW Transfer.
(c) No Impairment . Nothing contained in Section 4.02(a) or Section 4.02(b) will limit or otherwise affect any Partys rights or obligations pursuant to or contemplated by this Agreement or any other Transaction Document or any Ancillary Agreement, in each case in accordance with its terms.
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(d) No Actions as to Released Claims . SpinCo will not, and will cause each of its respective Affiliates not to, make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against ConAgra or any member of the ConAgra Group, or any other Person released pursuant to Section 4.02(a) , with respect to any Liabilities released pursuant to Section 4.02(a) . ConAgra will not, and will cause each other member of the ConAgra Group not to, make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against SpinCo or any of its respective Affiliates, or any other Person released pursuant to Section 4.02(b) , with respect to any Liabilities released pursuant to Section 4.02(b) .
4.03 Indemnification . (a) Indemnification by SpinCo and the LW Group . Without limiting or otherwise affecting the indemnity provisions of any Transaction Document or Ancillary Agreement, effective as of the Distribution Date and subject to the limitations set forth in this Article IV , SpinCo hereby indemnifies ConAgra, its Affiliates and their respective Representatives (together, in each case, with their respective successors and permitted assigns, the ConAgra Indemnified Parties ) from and against, and agrees to hold them harmless from, any and all Damages arising out of, resulting from or related to (whether prior to or following the Distribution) any of the following items (without duplication):
(i) any breach by SpinCo or any other member of the LW Group of any covenant to be performed by such Persons pursuant to this Agreement or any Transaction Document (other than the Tax Matters Agreement and the Transition Services Agreement) or any Ancillary Agreement (other than the Reverse TSA) subsequent to the Business Transfer Time;
(ii) any LW Liability, including the failure of SpinCo or any other member of the LW Group or any other Person to pay, perform, fulfill, discharge and, to the extent applicable, comply with, in due course and in full, any such LW Liabilities; and
(iii) any matters for which indemnification is provided by SpinCo or any LW Entity under any Transaction Document (other than this Agreement) or any Ancillary Agreement (it being understood that the terms of such indemnification shall be governed by and subject to the terms of the applicable Transaction Document or the applicable Ancillary Agreement to the extent such terms differ from the provisions of this Article IV ).
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(b) Indemnification by ConAgra . Without limiting or otherwise affecting the indemnity provisions of any Transaction Document or Ancillary Agreement, effective as of the Distribution Date and subject to the limitations set forth in this Article IV , ConAgra hereby indemnifies SpinCo, its Affiliates and their respective Representatives (together, in each case, with their respective successors and permitted assigns, the LW Indemnified Parties ) from and against, and agrees to hold them harmless from, any and all Damages arising out of, resulting from or related to (whether prior to or following the Distribution) any of the following items (without duplication):
(i) any breach by ConAgra or any other member of the ConAgra Group of any covenant to be performed by such Persons pursuant to this Agreement or any Transaction Document (other than the Tax Matters Agreement and the Transition Services Agreement) or any Ancillary Agreement (other than the Reverse TSA) subsequent to the Business Transfer Time;
(ii) any Excluded Liability, including the failure of ConAgra or any other member of the ConAgra Group or any other Person to pay, perform, fulfill, discharge, and, to the extent applicable, comply with, in due course and in full, such Excluded Liabilities; and
(iii) any matters for which indemnification is provided by ConAgra or any member of the ConAgra Group under any Transaction Document (other than this Agreement) or any Ancillary Agreement (it being understood that the terms of such indemnification shall be governed by and subject to the terms of the applicable Transaction Document or the applicable Ancillary Agreement to the extent such terms differ from the provisions of this Article IV ).
4.04 Calculation and Other Provisions Relating to Indemnity Payments . (a) Insurance . The amount of any Damages for which indemnification is provided under this Article IV will be net of any amounts actually recovered by the Indemnitee or its Affiliates under non-Affiliated third-party, non-captive insurance policies with respect to such Loss (less the Recovery Cost). If any Damages resulting in indemnification under Section 4.03 relates to a claim by an Indemnitee or its Affiliates that is covered by one or more non-Affiliated third-party, non-captive insurance policies held by the Indemnitee or its Affiliates, the Indemnitee will use and will cause its Affiliates to use Commercially Reasonable Efforts to pursue claims against the applicable insurers for coverage of such Damages under such policies. Without duplication of the first sentence of this Section 4.04(a) , the Indemnifying Party will pay directly, or promptly reimburse the Indemnitee for the costs of pursuing such claims (including, if necessary, the filing of coverage litigation). Any indemnity payment hereunder will initially be made without regard to this Section 4.04(a) , and if the Indemnitee or its Affiliates actually receive a full or partial recovery under such insurance policies following payment of indemnification by the Indemnifying Party in respect of such Damages, then the Indemnitee will refund amounts received from the Indemnifying Party up to the amount of indemnification actually received from the Indemnifying Party with respect to such Damages (less the cost to collect the proceeds of such insurance).
(b) Tax Benefits . If an indemnification obligation of any Indemnifying Party under this Article IV arises in respect of an adjustment that makes allowable to an Indemnitee any Tax Benefit which would not, but for such adjustment, be allowable, then any such indemnification obligation shall be an amount equal to (i) the amount otherwise due but for this Article IV , minus (ii) the reduction in actual cash Taxes payable by the Indemnitee in the Taxable year such indemnification obligation arises and the two Taxable years following such year, determined on a with and without basis.
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4.05 Procedures for Defense, Settlement and Indemnification of Third-Party Claims . (a) Each Person seeking indemnification under this Article IV (the Indemnitee ) will give prompt written notice to the Person from whom indemnification is sought (the Indemnifying Party ) of the assertion of any claim or the commencement of any Action by any third party ( Third-Party Claim ); provided that the failure of the Indemnitee to give notice as provided in this Section 4.05(a) will not relieve any Indemnifying Party of its obligations under Section 4.03 , except to the extent that such failure actually prejudices the rights of any such Indemnifying Party. Such notice will set forth in reasonable detail such claim and the basis for indemnification (taking into account the information then available to the Indemnitee). Thereafter, the Indemnitee will deliver to the Indemnifying Party, as promptly as reasonably practicable following the Indemnitees receipt thereof, copies of all written notices and documents (including any court papers) received by the Indemnitee relating to the Third-Party Claim and the Indemnitee will provide the Indemnifying Party with such other Information with respect to any such Third-Party Claim reasonably requested by the Indemnifying Party. The Indemnifying Party will have the right, at its sole option and expense, to be represented by counsel of its choice and, subject to the limitations set forth in this Section 4.05 , to assume control of, and defend against, negotiate, settle (subject to Section 4.05(b) ) or otherwise deal with such Third-Party Claim, but the Indemnitee may nonetheless participate in the defense of such Third-Party Claim with its own counsel and at its own expense. In the case of any Third-Party Claim for which indemnification is sought, the Indemnifying Party will have the right, upon written notice to the Indemnitee within 30 days after receipt of the notice of such claim (the Indemnification Dispute Period ), to assume control of and defend against such Third-Party Claim. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Third-Party Claim, or fails to provide the Indemnitee with notice of its intent to assume control of and defend against any Third-Party Claim within the Indemnification Dispute Period, then the Indemnitee may defend against, negotiate, settle (subject to Section 4.05(b) ) or otherwise deal with such Third-Party Claim. If the Indemnifying Party will assume the defense of any Third-Party Claim pursuant to this Article IV , then the Indemnitee may participate, at his or its own expense, in the defense of such Third-Party Claim; provided that such Indemnitee will be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if (i) requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the Indemnifying Party, a material conflict exists between the Indemnitee and the Indemnifying Party that would make such separate representation advisable; provided , further that the Indemnifying Party will not be required to pay for more than one such counsel for all Indemnified Parties in connection with any Third-Party Claim. Notwithstanding the foregoing, participation by the Indemnitee will allow the Indemnitee to consult with independent counsel or advisors and to submit comments and questions, which the Indemnifying Party will consider or respond to in good faith but the Indemnifying Party will not be obligated to act upon and, subject to the terms of this Article IV , such comments or questions will not alter or limit the Indemnifying Partys obligations as set forth in this Agreement.
(b) Notwithstanding anything in this Section 4.05 to the contrary, neither the Indemnifying Party nor the Indemnitee will, without the written consent of the
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other party, settle or compromise any Third-Party Claim or permit a default or consent to entry of any judgment. Notwithstanding the foregoing, consent of the Indemnitee will not be required for any such settlement if (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, (ii) such settlement does not permit any order, injunction or other equitable relief to be entered, directly or indirectly, against the Indemnitee and (iii) such settlement includes an unconditional release of such Indemnitee from all liability on claims that are the subject matter of such Third-Party Claim and does not include any statement as to or any admission of fault, culpability or failure to act by or on behalf of any Indemnitee. If the Indemnifying Party makes any payment on any Third-Party Claim or in respect of any Environmental Claim, then the Indemnifying Party will be subrogated, to the extent of such payment, to all rights and remedies of the Indemnitee to any insurance benefits or other claims of the Indemnitee with respect to such Third-Party Claim or Environmental Claim, as applicable.
(c) After any decision, judgment or award shall have been rendered by a Governmental Authority of competent jurisdiction, or a settlement shall have been consummated (in accordance with this Article IV ), or the Indemnitee and the Indemnifying Party shall have arrived at a mutually binding agreement with respect to a Third-Party Claim hereunder, the Indemnitee will forward to the Indemnifying Party notice of any sums due and owing by the Indemnifying Party pursuant to this Agreement with respect to such matter.
(d) Each party will cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third-Party Claim and will furnish or cause to be furnished such records, Information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Notwithstanding the foregoing, this Section 4.05 and the following Section 4.06 will not apply to indemnification for related to Tax matters. The procedures for such indemnification will be governed by the Tax Matters Agreement.
4.06 Direct Claim Procedures . (a) In the event an Indemnitee has a claim for indemnity under Section 4.03 against an Indemnifying Party that does not involve a Third-Party Claim, the Indemnitee agrees to give prompt notice in writing, and as promptly as practicable, of such claim to the Indemnifying Party, which notice will in no event be delivered to the Indemnifying Party later than 60 days after the Indemnitee first learns of the facts on which such claim is based (such 60-day period, the Notice Period ). Such notice will set forth in reasonable detail such claim and the basis for indemnification and the amount of such damages incurred or that such Indemnitee reasonably estimates in good faith is likely to be incurred in connection with such claim (all taking into account the information then in the possession or under the control of the Indemnitee). The failure to notify the Indemnifying Party as promptly as practicable within the Notice Period will not relieve the Indemnifying Party of its obligations hereunder, except to the extent that such failure shall have actually prejudiced the Indemnifying Party (in which case relieved only to the extent of such prejudice), and in
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any event, the Indemnifying Party will have no indemnification obligation in respect of any claim for which notice is delivered following expiration of the applicable Notice Period for such claim.
(b) If the Indemnifying Party notifies the Indemnitee that it does not dispute its liability to the Indemnitee with respect to any claim other than a Third-Party Claim or fails to notify the Indemnitee within the Indemnification Dispute Period, the damages arising from any such claim will be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party will pay the amount of such damages to the Indemnitee on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnitee will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, either party may seek a resolution of such dispute by litigation in a court of competent jurisdiction pursuant to Section 6.05 .
4.07 Additional Matters . (a) Cooperation in Defense and Settlement . With respect to any Third-Party Claim for which SpinCo, on the one hand, and ConAgra, on the other hand, may have Liability under this Agreement or any of the other Transaction Documents or any of the Ancillary Agreements, the Parties agree to cooperate reasonably and maintain a joint defense (in a manner that is intended to the maximum extent reasonably possible to preserve the attorney-client privilege, joint defense or other privilege or doctrine with respect thereto) so as to minimize such Liabilities and defense costs associated therewith. The Party that is not responsible for managing the defense of such Third-Party Claims will, upon reasonable request, be consulted with respect to significant matters relating thereto and may retain counsel to monitor or assist in the defense of such claims at its own cost.
(b) Certain Actions . Notwithstanding anything to the contrary set forth in this Article IV , ConAgra may elect to have exclusive authority and control over the investigation, prosecution, defense and appeal of any and all Actions pending at the Business Transfer Time which relate to or arise out of the LW Business, the LW Assets or the LW Liabilities and as to which a member of the ConAgra Group is also a plaintiff or named as a target or defendant thereunder (but excluding any such Actions which solely relate to or solely arise in connection with the LW Business, the LW Assets or the LW Liabilities); provided , however , that, (i) ConAgra defends or prosecutes, as applicable, such Actions in good faith, (ii) ConAgra reasonably consults with SpinCo on a regular basis with respect to strategy and developments with respect to any such Action, (iii) SpinCo will have the right to participate in (but not control) the defense or prosecution, as applicable, of such Action, and (iv) ConAgra must obtain the written consent of SpinCo, such consent not to be unreasonably withheld, conditioned or delayed, to settle or compromise or consent to the entry of judgment with respect to such Action if ConAgra is a defendant and such settlement, consent or judgment would require SpinCo to abandon its rights, change its business practices or incur any Liabilities with respect thereto or if ConAgra is a plaintiff and the resolution involves a judgment that is less than was being sought in respect of the LW Business. After any such compromise, settlement, consent to entry of judgment or entry of judgment, ConAgra and SpinCo will agree upon a reasonable allocation to SpinCo and SpinCo will
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be responsible for or receive, as the case may be, SpinCos proportionate share of any such compromise, settlement, consent or judgment attributable to the LW Business, the LW Assets or the LW Liabilities, including its proportionate share of the reasonable costs and expenses associated with defending same.
(c) Reasonable Minimization of Losses . To the extent any remedial, corrective or other ameliorative action is required to be taken by an Indemnitee in respect of a matter that is the subject of an indemnification claim hereunder, the Indemnitee will only be entitled for indemnification in respect of those actions that would be necessary to perform the minimum necessary remediation, correction or amelioration to remedy the breach or Liability, as the case may be, at the lowest reasonable cost.
(d) Substitution . In the event of an Action that involves solely matters that are indemnifiable and in which the Indemnifying Party is not a named defendant, if either the Indemnitee or the Indemnifying Party so requests, the Parties will endeavor to substitute the Indemnifying Party for the named defendant. If such substitution or addition cannot be achieved for any reason or is not requested, the rights and obligations of the Parties regarding indemnification and the management of the defense of claims as set forth in this Article IV will not be affected.
(e) Subrogation . In the event of payment by or on behalf of any Indemnifying Party to or on behalf of any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party will be subrogated to and will stand in the place of such Indemnitee, in whole or in part based upon whether the Indemnifying Party has paid all or only part of the Indemnitees Liability, as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim or against any other Person. Such Indemnitee will cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.
V. DISPUTE RESOLUTION
5.01 Dispute Process . The Parties will use commercially reasonable efforts to resolve expeditiously and on a mutually acceptable negotiated basis any dispute or disagreement between the Parties arising out of or relating to this Agreement or any Transaction Document or Ancillary Agreement (other than a third party claim) (a Dispute ) exclusively (except as otherwise expressly provided in this Agreement) as follows: (a) first, by engaging in good faith negotiations in accordance with the procedures set forth in Schedule 5.01 ; and (b) then, if the the Parties are unable to resolve the Dispute through the process of good faith negotiations contemplated in Schedule 5.01 , or if a Party reasonably concludes that the other Party is not willing to negotiate as contemplated by clause (a) of this Section 5.01 and provided in Schedule 5.01 , the Dispute will be submitted to an arbitration in accordance with Schedule 5.01 . The initiation of the alternative dispute resolution process hereunder will toll the applicable statute of limitations for the duration of any such proceedings.
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VI. MISCELLANEOUS
6.01 Survival of Covenants . None of the covenants or agreements contained in this Agreement shall survive the Distribution Date, other than those which by their terms contemplate performance after the Distribution Date and such surviving covenants and agreements shall survive the Distribution Date only until the expiration of the term of the undertaking set forth in such covenants and agreements; provided , however , that any claim made with reasonable specificity by the party seeking to be indemnified within the time periods set forth in this Section 6.01 shall survive until such claim is finally resolved.
6.02 Termination . This Agreement and any other Transaction Document, Ancillary Agreement or Transfer Document may be terminated by the ConAgra Board in its sole and absolute discretion at any time prior to the Distribution. In the event of any termination of this Agreement prior to the Distribution, no Party (or any member of its Group or any of its or their respective directors or officers) will have any Liability or further obligation to any other Party (or any member of its Group) with respect to this Agreement or such Transaction Document, Ancillary Agreement or Transfer Document.
6.03 Expenses . Except as otherwise provided in this Agreement or any of the other Transaction Documents or any of the Ancillary Agreements, all fees and expenses incurred in connection with the transactions contemplated hereby and thereby will be paid by the Party incurring such fees or expenses.
6.04 Entire Agreement . This Agreement, the other Transaction Documents, the Ancillary Agreements, including any related annexes, schedules and exhibits, as well as any other agreements and documents referred to herein and therein, together constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersede all prior negotiations, agreements and understandings of the Parties of any nature, whether oral or written, with respect to such subject matter. If there is a conflict between any provision of this Agreement and a provision of any other Transaction Document or a provision of any Ancillary Agreement, the provision of this Agreement will control unless specifically provided otherwise in this Agreement.
6.05 Governing Law . This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby will be governed by, and construed in accordance with, the Laws of the State of Delaware, without regard to the conflict of Laws provisions thereof that would cause the Laws of another state to apply.
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6.06 Notices . All notices, requests, permissions, waivers and other communications hereunder will be in writing and will be deemed to have been duly given (a) upon transmission, if sent by email with confirmation of receipt, (b) when delivered, if delivered personally to the intended recipient and (c) one Business Day following sending by overnight delivery via an international courier service and, in each case, addressed to a Party at the following address for such Party:
(i) | if to ConAgra: |
ConAgra Foods, Inc.
222 W. Merchandise Mart Plaza, Suite 1300
Chicago, Illinois 60654
Attention: Colleen Batcheler
Email: colleen.batcheler@conagra.com
(ii) | If to SpinCo: |
Lamb Weston Holdings, Inc.
599 S. Rivershore Lane
Eagle, Idaho 83616
Attention: Eryk J. Spytek
Email: eryk.spytek@conagra.com
or to such other address(es) as may be furnished in writing by any such Party to the other Party in accordance with the provisions of this Section 6.06 .
6.07 Amendments and Waivers . (a) This Agreement may be amended and any provision of this Agreement may be waived; provided , however , that any such amendment or waiver, as the case may be, is in writing and signed, in the case of an amendment, by the Parties or, in the case of a waiver, by the Party against whom the waiver is to be effective. No course of dealing between or among any Persons having any interest in this Agreement will be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Party under or by reason of this Agreement.
(b) No delay or failure in exercising any right, power or remedy hereunder will affect or operate as a waiver thereof; nor will any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or remedy preclude any further exercise thereof or of any other right, power or remedy. The rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that any Party would otherwise have.
6.08 No Third-Party Beneficiaries . This Agreement is solely for the benefit of the Parties and does not confer on third parties (including any employees of any member of the ConAgra Group or the LW Group) any remedy, claim, reimbursement, claim of action or other right in addition to those existing without reference to this Agreement.
6.09 Assignability . No Party may assign its rights or delegate its duties under this Agreement without the written consent of the other Party, except that a Party may assign its rights or delegate its duties under this Agreement to a member of its Group, provided that (a) such Person agrees in writing to be bound by the terms and conditions contained in this Agreement and (b) such assignment or delegation will not relieve any Party of its indemnification obligations or other obligations under this Agreement. Any attempted assignment or delegation in contravention of the foregoing will be void.
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6.10 Tax Matters; Priority of Agreements . Except as otherwise expressly provided herein, this Agreement will not govern Tax matters (including any administrative, procedural and related matters thereto), which will be exclusively governed by the Tax Matters Agreement. In the case of any conflict between this Agreement and the Tax Matters Agreement, in relation to any matters addressed by the Tax Matters Agreement, the Tax Matters Agreement will prevail.
6.11 Construction . The descriptive headings herein are inserted for convenience of reference only and are not intended to be a substantive part of or to affect the meaning or interpretation of this Agreement. Whenever required by the context, any pronoun used in this Agreement or the Schedules will include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns, pronouns, and verbs will include the plural and vice versa. Reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. References in this Agreement to any document, instrument or agreement (including this Agreement) includes and incorporates all exhibits, disclosure letters, schedules and other attachments thereto. Unless the context otherwise requires, any references to an Exhibit, Section or Article will be to an Exhibit, Section or Article to or of this Agreement, and will be deemed to include any provisions or matters set forth in any corresponding schedule or section of the Schedules. The use of the words include or including in this Agreement or the Schedules will be deemed to be followed by the words without limitation. The use of the word covenant will mean covenant and agreement. The use of the words or, either or any will not be exclusive. Days mean calendar days unless specified as Business Days. References to statutes will include all regulations promulgated thereunder, and references to statutes or regulations will be construed to include all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation as of the date hereof. The Parties have participated jointly in the negotiation and drafting of this Agreement, the Transaction Documents and the Ancillary Agreements. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Except as otherwise expressly provided elsewhere in this Agreement or any Transaction Document or any Ancillary Agreement, any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a Party, such Party may give or withhold such agreement, approval or consent, or exercise such right, in its sole and absolute discretion, the Parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.
6.12 Severability . The Parties agree that (a) the provisions of this Agreement will be severable in the event that for any reason whatsoever any of the provisions hereof are invalid, void or otherwise unenforceable, (b) any such invalid, void or otherwise unenforceable provisions will be replaced by other provisions which are as
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similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions will remain valid and enforceable to the fullest extent permitted by applicable Law.
6.13 Counterparts . This Agreement may be executed in multiple counterparts (any one of which need not contain the signatures of more than one Party), each of which will be deemed to be an original but all of which taken together will constitute one and the same agreement. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or other electronic transmission, will be treated in all manner and respects as an original agreement and will be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any Party, the other Party will re-execute original forms thereof and deliver them to the requesting Party.
6.14 Specific Performance . The Parties agree that irreparable damage would occur if any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed that the Parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of the terms and provisions of this Agreement without proof of actual damages, this being in addition to any other remedy to which any Party is entitled at Law or in equity. Each Party further agrees that no other Party or any other Person will be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 6.14 , and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument and will not contest the appropriateness of specific performance as a remedy.
6.15 Conflict with Another Transaction Document or Ancillary Agreement . Other than with respect to Tax matters and any matters addressed by the Tax Matters Agreement, if there is any conflict between this Agreement and another Transaction Document, each of this Agreement and the other Transaction Document is to be interpreted and construed, if possible, so as to avoid or minimize such conflict, but, to the extent (and only to the extent) of such conflict, this Agreement shall prevail and control. If there is any conflict between any Transaction Document and any Ancillary Agreement, each of such Transaction Document and such Ancillary Agreement is to be interpreted and construed, if possible, so as to avoid or minimize such conflict, but, to the extent (and only to the extent) of such conflict, the Transaction Document shall prevail and control.
VII. DEFINITIONS
For purposes of this Agreement, the following terms, when utilized in an initial capitalized form, will have the following meanings:
Action means any demand, charge, claim, action, suit, counter suit, arbitration, mediation, hearing, inquiry, proceeding, audit, review, complaint, litigation or investigation, sanction, summons, demand, subpoena, examination, citation, audit, review or proceeding of any nature whether administrative, civil, criminal, regulatory or otherwise, by or before any Governmental Authority.
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Affiliate means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term control (including, with correlative meanings, the terms controlled by and under common control with), as used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise. For the avoidance of doubt, (a) Affiliates of ConAgra will include SpinCo and the LW Entities prior to the Distribution, and (b) Affiliates of SpinCo will include the LW Entities after the Distribution.
Affiliated Transferor means any Affiliate of ConAgra (other than a member of the LW Group) that either (i) owns, licenses or leases any of the assets that constitute LW Assets or (ii) is liable for any of the LW Liabilities.
Agreement has the meaning set forth in the preamble.
Alexia Trademark License Agreement means the Alexia Trademark License Agreement, dated as of the date of this Agreement, between ConAgra Foods RDM, Inc., a wholly owned subsidiary of ConAgra, and ConAgra Foods Lamb Weston, Inc., a wholly owned subsidiary of ConAgra that will become, pursuant to the LW Transfer, a wholly owned subsidiary of SpinCo.
Ancillary Agreements means the Lease, the Option and the Reverse TSA.
Assets means assets, properties and rights (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person.
Business Day means any day that is not a Saturday, a Sunday or other day that is a statutory holiday under the federal Laws of the United States.
Business Transfer Time has the meaning set forth in Section 1.01(b) .
Code means the Internal Revenue Code of 1986, as amended.
Commercially Reasonable Efforts means, with respect to the efforts to be expended by a Party with respect to any objective under this Agreement, reasonable, diligent good faith efforts to accomplish such objective as such Party would normally use to accomplish a similar objective as expeditiously as reasonably possible under similar circumstances exercising reasonable business judgment, it being understood and agreed that such efforts will include the exertion of efforts and utilization of
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resources that would be used by such Party in support of one of its own wholly owned businesses. Commercially Reasonable Efforts will not require a Party (a) to make payments to unaffiliated third parties (except as set forth in this Agreement), to incur non- de minimis Liabilities to unaffiliated third parties or to grant any non- de minimis concessions or accommodations unless the other Party agrees to reimburse and make whole such Party to its reasonable satisfaction for such Liabilities, concessions or accommodations requested to be made by the other Party (such reimbursement and make whole to be made promptly after the determination thereof following the Distribution or, with respect to items incurred after the Distribution, promptly thereafter), (b) to violate any Law, or (c) to initiate any litigation or arbitration.
Commission means the Securities and Exchange Commission.
ConAgra has the meaning set forth in the preamble.
ConAgra Board has the meaning set forth in the recitals.
ConAgra Common Stock means the common stock, par value $5.00 per share, of ConAgra.
ConAgra Group means ConAgra and each of its Subsidiaries, but excluding any member of the LW Group.
ConAgra Indemnified Parties has the meaning set forth in Section 4.03(a) .
ConAgra Names and Marks means the Names and Marks owned, held or licensed by ConAgra or any of its Subsidiaries immediately prior to the Distribution, including those listed on Schedule 7.01 , other than the LW Names and Marks, either alone or in combination with other words or elements, and all Names and Marks confusingly similar to or embodying any of the foregoing either alone or in combination with other words or elements, together with the goodwill associated with any of the foregoing.
ConAgra Plans has the meaning set forth in the Employee Matters Agreement.
ConAgra Portion has the meaning set forth in Section 1.08(b) .
ConAgra Support Arrangements has the meaning set forth in Section 1.07(c) .
ConAgra Transfer Documents has the meaning set forth in Section 1.09 .
Confidential Information has the meaning set forth in Section 3.04(a) .
Consents means any consents, waivers or approvals from, or notification requirements to, or authorizations by, any third parties.
Contracts means any contract, agreement, lease, sublease, license, sales order, purchase order, loan, credit agreement, bond, debenture, note, mortgage, indenture, guarantee, undertaking, instrument, arrangement, course of dealing, understanding or other commitment, whether written or oral, that is binding on any Person or any part of its property under applicable Law.
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Convey has the meaning set forth in Section 1.02(a) . Variants of this term such as Conveyance will have correlative meanings.
Copyrights has the meaning set forth in the definition of Intellectual Property.
Damages means all assessments, losses, damages, costs, expenses, Liabilities, judgments, awards, fines, sanctions, penalties, charges and amounts paid in settlement, including reasonable costs, fees and expenses of attorneys, accountants and other agents or representatives of such Person, but specifically excluding (i) any lost profits or opportunity costs, or any special, punitive or consequential damages (except in any such case to the extent assessed in connection with a third party claim or except to the extent such damages are the reasonable and foreseeable result of the matter in question), and (ii) any amount based on or taking into account the use of any LW Asset other than its use as of the Distribution Date.
Debt Exchange means the distribution of SpinCo Securities issued to ConAgra pursuant to the Special SpinCo Securities Issuance in exchange for outstanding indebtedness of ConAgra.
Designs has the meaning set forth in the definition of Intellectual Property.
Dispute has the meaning set forth in Section 5.01 .
Distribution has the meaning set forth in the recitals.
Distribution Date means, the date selected by the ConAgra Board or its designee for the distribution of SpinCo Common Stock to ConAgras stockholders in connection with the Distribution.
Distribution Effective Time means the time established by ConAgra as the effective time of the Distribution, New York time, on the Distribution Date.
Distribution Ratio means the number of shares of SpinCo Common Stock to be distributed in respect of each share of ConAgra Common Stock in the Distribution, which ratio will be determined by the ConAgra Board prior to the Record Date.
Domain Name has the meaning set forth in the definition of Intellectual Property.
Employee Matters Agreement means the Employee Matters Agreement, dated as of the date hereof, between ConAgra and SpinCo, as amended or modified from time to time in accordance with its terms.
Environmental Claim means any Action by any Person alleging or that may reasonably be expected to result in Liability (including Liability for investigatory costs, cleanup costs, governmental oversight or response costs, natural resource damages, fines or penalties) for any Environmental Conditions or any noncompliance with or obligations under any Environmental Laws.
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Environmental Conditions means the presence in the environment, including the soil, groundwater, surface water, ambient air or indoor air, or in any building materials, of any Hazardous Materials at a level at or exceeding the applicable standard or threshold under applicable Environmental Law or that otherwise requires investigation, remediation or other actions (including investigation, study, health or risk assessment, monitoring, removal, treatment, transport or response action) under any applicable Environmental Laws.
Environmental Laws means all Laws of any Governmental Authority, including common law, that relate to the protection of the environment and natural resources (including ambient or indoor air, surface water, ground water, land surface or subsurface strata) or the effect of the environment or Hazardous Materials on human health and safety, including Laws or any other binding legal obligations in effect now or in the future relating to the Release of Hazardous Materials, or otherwise relating to the generation, manufacture, sale, distribution, import, labeling, treatment, storage, disposal, transport or handling of Hazardous Materials, or to the exposure of any individual to any Hazardous Materials.
Exchange Act means the Securities Exchange Act of 1934.
Exchange Agent has the meaning set forth in Section 2.03(a) .
Excluded Assets has the meaning set forth in Section 1.05(b) .
Excluded IP Assets means (a) all UPC, EAN codes, IP addresses and any other codes or numbers that contain ConAgra identifiers and (b) the Intellectual Property set forth on Schedule 1.05(b)(ii) .
Excluded Liabilities has the meaning set forth in Section 1.06(b) .
Form 10 means the registration statement on Form 10 filed by SpinCo with the Commission to effect the registration of SpinCo Common Stock pursuant to the Exchange Act in connection with the Distribution, as such registration statement may be amended or supplemented from time to time, including any amendment or supplement thereto.
Governmental Approvals means any notices, reports or other filings to be made to, or any Consents, registrations, permits, approvals, Orders, clearances, variances, terminations or expirations of waiting periods or authorizations to be obtained from, any Governmental Authority.
Governmental Authority means any federal, state, local, provincial, foreign or international court, tribunal, judicial or arbitral body, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority or any national securities exchange.
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Governmental Permits means any licenses, registrations, permits, Orders, clearances, or other authorizations of any Governmental Authority.
Group means the ConAgra Group or the LW Group, as the context requires.
Hazardous Materials means chemicals, pollutants, contaminants, wastes, toxic substances, radioactive and biological materials, hazardous substances, asbestos and asbestos containing materials, petroleum and petroleum products or any fraction thereof, or any other substance or material, in each case, that is defined by, regulated by, or may form the basis for liability under any Environmental Laws.
Indemnification Dispute Period has the meaning set forth in Section 4.05(a) .
Indemnifying Party has the meaning set forth in Section 4.05(a) .
Indemnitee has the meaning set forth in Section 4.05(a) .
Information means information in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, forecasts, budgets, reports, records, books, Contracts, instruments, surveys, discoveries, ideas, concepts, know-how, recipes, techniques, designs, specifications, processes, procedures, policies, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other Software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos, manuals and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data, but in any case excluding back-up tapes.
Information Statement means the Information Statement, attached as an exhibit to the Form 10, to be sent or otherwise made available to each of ConAgras stockholders in connection with the Distribution, as such Information Statement may be amended or supplemented from time to time.
Intellectual Property means, in any and all jurisdictions throughout the world, all (a) patents, patent applications, inventors certificates, utility models, statutory invention registrations, and other indicia of ownership of an invention, discovery or improvement issued by any Governmental Authority, including reissues, divisionals, continuations, continuations-in-part, extensions, reexaminations and other pre-grant and post-grant forms of the foregoing (collectively, Patents ), (b) trademarks, service marks, trade dress, slogans, logos, symbols, trade names, brand names and other identifiers of source or goodwill recognized by any Governmental Authority, including registrations and applications for registration thereof and including the goodwill symbolized thereby or associated therewith (collectively, Trademarks ), and Internet domain names and associated uniform resource locators (collectively, Domain Names ), (c) copyrights, whether in published and unpublished works of authorship, registrations, applications, renewals and extensions therefor, mask works, and any and all similar rights recognized in a work of authorship by a Governmental Authority (collectively, Copyrights ), (d) any
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trade secret rights in any inventions, discoveries, improvements, trade secrets and all other confidential or proprietary Information (including know-how, data, formulas, processes and procedures, research records, records of inventions, test information, and market surveys), and all rights to limit the use or disclosure thereof (collectively, Trade Secrets ), (e) registered and unregistered design rights (collectively, Designs ), (f) rights of privacy and publicity, and (g) any and all other intellectual or industrial property rights recognized by any Governmental Authority under the Laws of any country throughout the world.
Intended Tax-Free Treatment means the qualification of (i) the LW Transfer, together with the Special Cash Payment, the Special SpinCo Securities Issuance, the Debt Exchange and the Distribution as a reorganization described in Section 368(a)(1)(D) of the Code and of each of ConAgra and SpinCo as a party to the reorganization within the meaning of Section 368(b) of the Code, (ii) the Distribution, as such, as a distribution of SpinCo Common Stock to ConAgras stockholders pursuant to Section 355 of the Code, (iii) the Special Cash Payment as money distributed to ConAgra creditors or shareholders in connection with the reorganization for purposes of Section 361(b) of the Code, (iv) the Special SpinCo Securities Issuance as a tax-free issuance under Section 361(a) of the Code and the Debt Exchange as a tax-free exchange to ConAgra within the meaning of Section 361(c) of the Code and (v) the transactions described on Schedule A to the Tax Matters Agreement as being free from Tax to the extent set forth therein.
Intercompany Accounts has the meaning set forth in Section 1.07(b) .
Internal Restructuring means the internal reorganization of the LW Business, as set forth in Exhibit A .
Joint Venture Interests means the equity interests in the LW Joint Ventures held by any member of the LW Group or, prior to the Distribution, any member of the ConAgra Group.
Lamb Weston has the meaning set forth in the preamble.
Law means any statute, law, ordinance, regulation, rule, code or other requirement of, or Order or Governmental Permit issued by, a Governmental Authority.
Lease means that certain Lease, made as of the 24th day of October, 2016, between ConAgra Limited/ConAgra Limitée (the Landlord) and Lamb Weston Canada ULC (the Tenant).
Liabilities means all debts, liabilities, guarantees, assurances and commitments, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including whether arising out of any Contract or tort based on negligence, strict liability or relating to Taxes payable by a Person in connection with compensatory payments to employees or independent contractors) and whether or not the same would be required by generally accepted principles and accounting policies to be reflected in financial statements or disclosed in the notes thereto.
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LW Assets has the meaning set forth in Section 1.05(a) .
LW Books and Records has the meaning set forth in Section 1.05(a)(viii) .
LW Business means the ConAgra Groups and the LW Groups direct or indirect business of researching, developing and cultivating potatoes and sweet potatoes, and manufacturing, marketing, distributing and selling potatoes and sweet potatoes, appetizers and vegetable products, primarily in frozen form, through the wholesale, commercial and retail channels under the Lamb Weston brand, Alexia brand and the other brands set forth on Schedule 7.02 , and Lamb Weston products made in support of customer-owned brands and customer commercial food service operations, in each case, produced in the facilities set forth on Schedule 7.03 . In construing the scope of the term LW Business, LW Business will not include the LW Joint Ventures or any Assets or Liabilities of the LW Joint Ventures.
LW Contracts means all contracts, commitments, leases and other agreements to which a member of the ConAgra Group or the LW Group is a party and that relate exclusively to the LW Business.
LW Employee has the meaning set forth in the Employee Matters Agreement.
LW Entities has the meaning set forth in Section 1.05(a)(iv) .
LW Equity Interests has the meaning set forth in Section 1.05(a)(iv) .
LW Facilities has the meaning set forth in Section 1.05(a)(iii) .
LW Group means SpinCo and each of its Subsidiaries, which will be deemed to include the LW Entities. For the avoidance of doubt, the LW Joint Ventures will not be deemed to be members of the LW Group.
LW Indemnified Parties has the meaning set forth in Section 4.03(b) .
LW Insureds has the meaning set forth in Section 3.05 .
LW Inventory has the meaning set forth in Section 1.05(a)(ii) .
LW IP Assets has the meaning set forth in Section 1.05(a)(vii) .
LW Joint Ventures means, collectively, the joint ventures set forth on Schedule 7.04 .
LW Liabilities has the meaning set forth in Section 1.06(a) .
LW Names and Marks means the Names and Marks owned, held or licensed by ConAgra or any of its Subsidiaries immediately prior to the Distribution and exclusively used or held for exclusive use in the LW Business, including those listed on Schedule 7.05 , either alone or in combination with other words or elements, and all Names and Marks that are confusingly similar to or embodying any of the foregoing either alone or in combination with other words or elements, together with the goodwill associated with any of the foregoing.
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LW Portion has the meaning set forth in Section 1.08(b) .
LW Software has the meaning set forth in Section 1.05(a)(ix) .
LW Transfer has the meaning set forth in the recitals.
LW Transfer Documents has the meaning set forth in Section 1.10 .
Names and Marks means Trademarks, monograms, Domain Names and other source or business identifiers.
Notice Period has the meaning set forth in Section 4.06(a) .
NYSE means the New York Stock Exchange.
Option means that certain Option to Purchase dated as of the 24th day of October, 2016, between ConAgra Limited/ConAgra Limitée (the Optionor) and Lamb Weston Canada ULC (the Optionee).
Order means any orders, judgments, injunctions, awards, decrees, writs or other legally enforceable requirement handed down, adopted or imposed by, including any consent decree, settlement agreement or similar written agreement with, any Governmental Authority.
Parties has the meaning set forth in the preamble.
Patents has the meaning set forth in the definition of Intellectual Property.
Person means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other entity or organization or a Governmental Authority.
Pre-Distribution Occurrences has the meaning set forth in Section 3.05 .
Privileged Business Communications has the meaning set forth in Section 3.06(b) .
Privileged Communications has the meaning set forth in Section 3.06(a) .
Privileged Transaction Communications has the meaning set forth in Section 3.06(a) .
Real Property Interests means all interests in real property, including improvements, structures and fixtures located thereon, of whatever nature, including easements and mineral, oil and gas rights, whether as owner or holder of a Security Interest, lessor, sublessor, lessee, sublessee or otherwise.
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Record Date means the close of business on the date to be determined by the ConAgra Board as the record date for determining stockholders of ConAgra entitled to receive shares of SpinCo Common Stock in the Distribution.
Record Holders means the holders of record of ConAgra Common Stock as of the close of business on the Record Date.
Recovery Costs has the meaning set forth in Section 3.05 .
Registered Intellectual Property means any and all Copyright registrations or applications for registration, Design registrations or applications for registration, Patents, Trademark registrations or applications for registration, and Domain Name registrations.
Release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into surface water, groundwater, land surface or subsurface strata or ambient air (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Materials).
Representatives means with respect to any Person, such Persons and any of its Subsidiaries officers, employees, agents, advisors, directors, consultants and other representatives.
Retained Business means any business now, previously or hereafter conducted by ConAgra or any of its Subsidiaries other than the LW Business.
Retained Policies has the meaning set forth in Section 3.05 .
Retained Policy Claims has the meaning set forth in Section 3.05 .
Reverse TSA means that certain Reverse Transition Services Agreement entered into by ConAgra and SpinCo on the date hereof, as amended or modified from time to time in accordance with its terms, pursuant to which SpinCo through one or more of its Subsidiaries will provide certain employee services to ConAgra.
Securities Act means the Securities Act of 1933.
Security Interest means, whether arising under any Contract or otherwise, any mortgage, security interest, pledge, lien, charge, claim, option to purchase or lease, indenture, right to acquire, right of first offer or refusal, deed of trust, licenses to third parties, leases to third parties, security agreements, voting or other restriction, right-of-way, covenant, condition, easement, encroachment, title defect, restriction on transfer or other encumbrance and other restrictions, conditions or limitations on the ownership, possession or use of any real, personal, tangible or intangible property.
Segregated Account has the meaning set forth in Section 1.11(b) .
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Separation has the meaning set forth in the recitals.
Shared Business Contracts means any Contract of any member of either Group that (a) relates to both the LW Business and the Retained Business and (b) is set forth on Schedule 7.06 .
Shared Information means (a) all Information provided by any member of the LW Group to a member of the ConAgra Group prior to the Business Transfer Time, (b) any Information in the possession or under the control of such respective Group that relates to the operation of the LW Business and the LW Joint Ventures prior to the Distribution and that the requesting Party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting Party (including under applicable securities or Tax Laws) by a Governmental Authority having jurisdiction over the requesting Party, (ii) for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation or other similar requirements, in each case other than claims or allegations that one Party to this Agreement has against the other, (iii) subject to the foregoing clause (ii) above, to comply with its obligations under this Agreement or any other Transaction Document or any Ancillary Agreement, or (iv) to the extent such Information and cooperation is necessary to comply with such reporting, filing and disclosure obligations, for the preparation of financial statements or completing an audit, and as reasonably necessary to conduct the ongoing Retained Business, the LW Business or the LW Joint Ventures, as the case may be, and (c) any Information that is reasonably necessary for the conduct of the LW Business or the LW Joint Ventures (except for any information relating to performance ratings or assessments of employees of the ConAgra Group and LW Employees (including performance history, reports prepared in connection with bonus plan participation and related data, other than individual bonus opportunities based on target bonus as a percentage of base salary)).
Software means any and all (i) computer programs, including any and all software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or other form, (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing, (iv) screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons and (v) specifications and documentation, including user manuals and other training documentation, relating to any of the foregoing.
Special Cash Amount has the meaning set forth in Section 1.11(a) .
Special Cash Payment has the meaning set forth in Section 1.11(a) .
Special SpinCo Securities Issuance has the meaning set forth in Section 1.11(a)(iii) .
SpinCo has the meaning set forth in the preamble.
SpinCo Common Stock has the meaning set forth in the recitals.
45
SpinCo Securities means notes issued by SpinCo to ConAgra with terms as set forth on Schedule 7.07 .
Stock Issuance has the meaning set forth in Section 1.11(a)(i) .
Subsidiary of any Person means another Person (other than a natural Person), of which such Person owns directly or indirectly (a) an aggregate amount of the voting securities, other voting ownership or voting partnership interests to elect a majority of the Board of Directors or other governing body or (b) if there are no such voting interests, 51% or more of the equity interests therein.
Tax has the meaning set forth in the Tax Matters Agreement.
Tax Benefit has the meaning set forth in the Tax Matters Agreement.
Tax Matters Agreement means the Tax Matters Agreement entered into by ConAgra and SpinCo on the date hereof, as amended or modified from time to time in accordance with its terms.
Third-Party Claim has the meaning set forth in Section 4.05(a) .
Trade Secrets has the meaning set forth in the definition of Intellectual Property.
Trademarks has the meaning set forth in the definition of Intellectual Property.
Transaction Documents means, collectively, this Agreement, the Tax Matters Agreement, the Employee Matters Agreement, the Transition Services Agreement, the Alexia Trademark License Agreement and any other documents required to be delivered by a Person under any of the foregoing documents.
Transfer Documents has the meaning set forth in Section 1.10 .
Transferred Employees means employees of any member of the LW Group and any employees of ConAgra or its Subsidiaries whose employment transfers to the LW Group on or after the Business Transfer Time.
Transition Services Agreement means the Transition Services Agreement, dated as of the date hereof, between ConAgra and SpinCo, as amended or modified from time to time in accordance with its terms.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.
CONAGRA FOODS, INC. | ||
By: | /s/ Colleen R. Batcheler | |
Name: | Colleen R. Batcheler | |
Title: | Executive Vice President, General Counsel and Corporate Secretary |
LAMB WESTON HOLDINGS, INC. | ||
By: | /s/ Thomas P. Werner | |
Name: | Thomas P. Werner | |
Title: | President and Chief Executive Officer |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CONAGRA FOODS, INC.
ConAgra Foods, Inc. , a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the Corporation), hereby certifies as follows:
First : The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on December 5, 1975. The name of the Corporation when it was originally incorporated was ConAgra, Inc. A restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on December 1, 2005, under the name ConAgra Foods, Inc. (the Restated Certificate of Incorporation).
Second : This amended and restated Certificate of Incorporation of the Corporation (this Amended and Restated Certificate of Incorporation) has been duly adopted by the Board of Directors of the Corporation in accordance with Sections 242(a)(1), 242(b)(1) and 245 of the General Corporation Law of the State of Delaware to (i) amend Article I of the Restated Certificate of Incorporation to change the Corporations corporate name (there being no other amendments) and (ii) restate the other provisions of the Restated Certificate of Incorporation.
Third : This Amended and Restated Certificate of Incorporation will be effective as of 11:59 p.m. (Eastern time) on November 9, 2016 (the Effective Time).
Fourth : As of the Effective Time, the Restated Certificate of Incorporation is amended and restated and the Amended and Restated Certificate of Incorporation reads in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation shall be Conagra Brands, Inc.
ARTICLE II
REGISTERED OFFICE AND
REGISTERED AGENT
The street address of the registered office of the Corporation is 2711 Centerville Road, Suite 400, Wilmington, Delaware, 19808, County of New Castle. The name of its registered agent at such address is The Prentice-Hall Corporation System, Inc.
ARTICLE III
PURPOSES
The general nature of the business and the objects and purposes proposed to be transacted, promoted and carried on by the Corporation are to do any and all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, including:
(a) To manufacture, purchase, acquire, prepare, produce, own, hold, store, process, prepare for market, preserve, package, deal in, trade in, sell, distribute, mortgage, pledge and dispose of flour, feed grain, agricultural products, articles manufactured from agricultural products, and any articles, materials, ingredients, goods, wares, merchandise, products, machinery, equipment and property related or incidental thereto or useful, necessary or convenient in connection therewith.
(b) To operate factories, warehouses, elevators, and other buildings for manufacturing, buying, selling, handling, and storing flour, feed grain, agricultural products and articles manufactured from agricultural products, to conduct a public warehouse business, and to engage in, carry on, or otherwise conduct, or employ others to conduct, general research or investigation for the development of new or improved products or by-products and the use of such products or by-products as food, and for improving the ease or efficiency of the products, operations and procedures of the Corporation or for other purposes.
(c) To promote, institute, enter into, conduct, perform, assist or participate in every kind of commercial, agricultural, mercantile, manufacturing, mining or industrial enterprise, business, work, contract, undertaking, venture and operation in any part of the world and, for any such purpose, to purchase, lease and otherwise acquire, take over, hold, sell, liquidate and otherwise dispose of the real estate, crops, livestock, plants, equipment, inventory, merchandise, materials, stock, good will, rights, franchises, concessions, patents, trademarks and trade names and other properties of the corporations, associations, partnerships, firms, trustees, syndicates, ventures, combinations, organizations and other entities located in or organized under the laws of any part of the world; to continue, alter, exchange and develop their business, assume their liabilities, guarantee or become surety for the performance of their obligations, reorganize their capital and participate in any way in their affairs, and to take over, as a going concern and to continue in its own name, any business so acquired, all in accordance with and to the extent permitted by law.
(d) To borrow or raise moneys for any of the purposes of the Corporation and, from time to time, without limit as to amount, to draw, make, accept, endorse, execute, issue, and grant promissory notes, drafts, bills of exchange, warrants, options, bonds, debentures, and other negotiable or non-negotiable instruments, evidences of indebtedness and agreements; to secure the payment thereof and of the interest thereon and the performance thereof by mortgage upon, or pledge, conveyance, or assignment in trust of, the whole or any part of the assets of the Corporation, whether at the time owned or thereafter acquired; and to sell, pledge, or otherwise dispose of such securities or other obligations of the Corporation for its corporate purposes.
(e) To guarantee, purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of the shares of the capital stock of, or any bonds, securities or evidences of indebtedness created by any other corporation or corporations of the State of Delaware or any other state, country, nation or government and, while the owner of said stock, to exercise all the rights, powers, and privileges of ownership, including the right to vote thereon.
(f) To pay for any property, securities, rights or interests acquired by this Corporation in cash or other property, rights or interests held by this Corporation, or by issuing and delivering in exchange therefor its own property, stock, shares, bonds, debentures, notes, warrants for stock, certificates of indebtedness or other obligations or securities howsoever evidenced.
(g) To carry on all or any part of its business objects or purposes as principal, factor, agent, contractor or otherwise, either alone or as a member of, or associated with any corporation, association, partnership, firm, trustee, syndicate, individual, combination, organization, joint venture or entity in any part of the world.
(h) In carrying on its business and for the purpose of furthering its objects and purposes, to enter into and perform agreements and contracts of any nature with any government, state, territory, district, municipality, political or governmental division or subdivision, body politic, corporation, association, partnership, firm, trustee, syndicate, individual, combination, organization or entity whatsoever.
(i) To have one or more offices, to carry on all or any of its operations and business and, without restriction or limit as to amount, to purchase or otherwise acquire, hold, own, mortgage, sell, convey or otherwise dispose of real and personal property of every class and description in any of the States, Districts, Territories or Colonies of the United States, and in any and all foreign countries, subject to the laws of any such State, District, Territory, Colony or Country.
It is the intention that the objects and purposes specified in the foregoing clauses of this Article shall not be in any wise limited or restricted by reference to or inference from the terms of any other clause of this or any other Articles in these Articles of Incorporation, but that the objects and purposes specified in each of the clauses of this Article shall be regarded as independent objects and purposes. It is also the intention that said clauses be constructed both as purposes and powers; and generally, that the corporation shall be authorized to exercise and enjoy all other powers, rights, and privileges granted to or conferred upon a corporation of this character by the laws of the State of Delaware, and the enumeration of certain powers as herein specified is not intended as exclusive of or as waiver of any of the powers, rights or privileges granted or conferred by the laws of said State, now or hereinafter in force.
ARTICLE IV
AUTHORIZED SHARES
The total number of shares which this corporation shall have authority to issue is One Billion Two Hundred Eighteen Million Fifty Thousand (1,218,050,000) shares, divided into One Billion Two Hundred Million (1,200,000,000) shares of Common Stock of a par value of Five Dollars ($5.00) per share; One Hundred Fifty Thousand (150,000) shares of Class B Preferred Stock of a par value of Fifty Dollars ($50.00) per share; Two Hundred Fifty Thousand (250,000) shares of Class C Preferred Stock of a par value of One Hundred Dollars ($100.00) per share; One Million One Hundred Thousand (1,100,000) shares of Class D Preferred Stock without par value; and Sixteen Million Five Hundred Fifty Thousand (16,550,000) shares of Class E Preferred Stock without par value.
The Class B Preferred Stock of this corporation may be divided into and issued in series, and each series shall be so designated as to distinguish the shares thereof from the shares of all other series and classes. All shares of this Class shall be identical except as to the following relative rights and preferences as to which there may be variations between different series within Class B as determined by the Board of Directors: (a) the rate of
dividend; (b) whether the shares may be redeemed and, if so, the redemption price and the terms and conditions of redemption; (c) the amount payable upon shares in event of voluntary or involuntary liquidation; (d) sinking fund provisions, if any, for the redemption or purchase of shares; and (e) the terms and conditions, if any, on which shares may be converted.
The Class C Preferred Stock of this corporation may be divided into and issued in series, and each series shall be so designated as to distinguish the shares thereof from the shares of all other series and classes. The shares of this Class shall not have any priority over Class B Preferred Stock as to payment of dividends or as to distribution of assets upon liquidation, distribution or winding up of the corporation. All shares of this Class shall be identical except as to the following relative rights and preferences as to which there may be variations between different series within Class C as determined by the Board of Directors: (a) whether such shares shall be granted voting rights and, if so, to what extent and upon what terms and conditions; (b) the rates and times at which, and the terms and conditions on which, dividends on such shares shall be paid and any dividend rights of cumulation; (c) whether such shares shall be granted conversion rights and, if so, upon what terms and conditions; whether the corporation shall have the right to redeem such shares and, if so, upon what terms and conditions; (e) the liquidation rights (if any) of such shares, including whether such shares shall enjoy any liquidation preference over the common stock; and (f) such other designations, preferences, relative rights and limitations (if any) attaching to such shares.
The Class D Preferred Stock of this corporation may be divided into and issued in series, and each series shall be so designated as to distinguish the shares thereof from the shares of all other series and classes. The shares of this Class shall not have any priority over Class B Preferred Stock or Class C Preferred Stock as to the payment of dividends or as to the distribution of assets upon liquidation, distribution or winding up of the corporation. All shares of this Class shall be identical except as to the following relative right and preferences as to which there may be variations between different series within Class D as determined by the Board of Directors: (a) whether such shares shall be granted voting rights and, if so, to what extent and upon what terms and conditions; (b) the rates and times at which, and the terms and conditions on which, dividends on such shares shall be paid and any dividend rights of cumulation; (c) whether such shares shall be granted conversion rights and, if so, upon what terms and conditions; (d) whether the corporation shall have the right to redeem such shares and, if so, upon what terms and conditions; the liquidation rights (if any) of such shares, including whether such shares shall enjoy any liquidation preference over the common stock; and (e) such other designations, preferences, relative rights and limitations (if any) attaching to such shares.
The Class E Preferred Stock of this corporation may be divided into and issued in series, and each series shall be so designated as to distinguish the shares thereof from the shares of all other series and classes. The shares of this Class shall not have any priority over Class B Preferred Stock, Class C Preferred Stock or Class D Preferred Stock as to the payment of dividends or as to the distribution of assets upon liquidation, distribution or winding up of the corporation. All shares of this Class shall be identical except as to the following relative rights and preferences as to which there may be variations between different series within Class E as determined by the Board of Directors: (a) whether such shares shall be granted voting rights and, if so, to what extent and upon what terms and conditions; (b) the rates and times at which, and the terms and conditions on which, dividends on such shares shall be paid and any dividend rights of cumulation; (c) whether such shares shall be granted conversion rights and, if so, upon what terms and conditions; (d) whether the corporation shall have the right to redeem such shares and, if so, upon what terms and conditions; (e) the liquidation rights (if any) of such shares, including whether such shares shall enjoy any liquidation preference over the common stock; and (f) such other designations, preferences, relative rights and limitations (if any) attaching to such shares.
No transfer of stock of this corporation shall be operative until entered upon the books of the corporation.
ARTICLE V
INDEMNIFICATION
The Corporation shall, to the extent required, and may, to the extent permitted, by Section 102 and Section 145 of Delaware General Corporation Law as amended from time to time, indemnify and reimburse all persons whom it may indemnify and reimburse pursuant thereto. With respect to acts or omissions occurring on or after September 18, 1986, no director shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided, however, that this provision shall not eliminate or limit the liability of a director (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders; (ii) for acts of omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the Delaware General Corporation Law; or (iv) for any transaction from which the director derived an improper personal benefit.
Notwithstanding the foregoing, the indemnification provided for in this ARTICLE V shall not be deemed exclusive of any other rights to which those entitled to receive indemnification or reimbursement hereunder may be entitled under any by-law of this Corporation, agreement, vote or consent of stockholders or disinterested directors or otherwise.
ARTICLE VI
DURATION
The Corporation shall have perpetual existence.
ARTICLE VII
POWERS
The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and it is expressly provided that they are intended to be in furtherance and not in limitation or exclusion of the powers conferred by the statutes of the State of Delaware.
(a) The affairs of this Corporation shall be conducted by a Board of Directors. The number of directors of the Corporation, not less than nine (9) nor more than sixteen (16), shall be fixed from time to time by the By-Laws. Until the annual election of directors by the stockholders of the Corporation in 2008, the directors of the Corporation shall be divided into three classes: Class I, Class II and Class III, each such class, as nearly as possible, to have the same number of directors. The term of office of the class of directors elected in 2003 shall expire at the annual election of directors by the stockholders of the Corporation in 2006, the term of office of the class of directors elected in 2004 shall expire at the annual election of directors by the stockholders of the Corporation in 2007, and the term of office of the class of directors elected in 2005 shall expire at the annual election of directors by the stockholders of the Corporation in 2008, or in each case thereafter when their respective successors are
elected by the stockholders and qualify. At each annual election of directors by the stockholders of the Corporation held after 2005, the directors chosen to succeed those whose terms are then expired shall be elected by the stockholders of the Corporation for a term ending at the annual election of directors by the stockholders of the Corporation following the annual election of directors by the stockholders of the Corporation at which the director was elected, or thereafter when their respective successors in each case are elected by the stockholders and qualify. Commencing with the annual election of directors by the stockholders of the Corporation in 2008, the classification of the Board of Directors shall terminate and all directors shall be of one class.
(b) The books of the Corporation may be kept within or without the State of Delaware at such place or places as may be designated from time to time by the Board of Directors.
(c) The Board of Directors may make, alter or repeal the By-Laws of the Corporation except as otherwise provided therein.
(d) The Board of Directors may authorize and cause to be executed mortgages and liens upon the real and personal property of the Corporation, may hold meetings outside the State of Delaware, may declare and pay stock dividends, and may set apart out of any funds of the Corporation available for dividends a reserve or reserves for any proper purpose or to abolish any such reserves in the manner in which it was created.
(e) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon it, the Board of Directors is hereby empowered to exercise all such powers and to do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the statues of Delaware, of this certificate of incorporation and of any By-Laws from time to time made by the stockholders; provided, however, that no By-Laws so made shall invalidate any prior act of the Board of Directors which would have been valid if such By-Laws had not been made.
ARTICLE VIII
MEETINGS OF STOCKHOLDERS
The time for holding meetings of Stockholders for the election of a Board of Directors and for holding any special meetings of the Stockholders shall be as provided for by the By-Laws adopted by the Board of Directors.
ARTICLE IX
AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal any provision contained in these Articles of Incorporation in the manner now or hereafter prescribed by statute, and all rights conferred upon Stockholders herein are granted subject to this reservation.
ARTICLE X
INTERESTED DIRECTORS
No contract or transaction between a corporation and one or more of its directors or officers, or between a corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the board or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (b) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the Shareholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE XI
PRIVATE PROPERTY
The private property of the Stockholders shall not be subject to the payment of corporate debts to any extent whatsoever.
ARTICLE XII
EFFECTS OF BUSINESS COMBINATIONS
The Board of Directors of the Corporation, when evaluating any offer of another party to (a) make a tender or exchange offer for any equity security of the Corporation, (b) merge or consolidate the Corporation with another corporation, or (c) purchase or otherwise acquire all or substantially all of the properties and assets of the Corporation, shall, in connection with the exercise of its judgment in determining what is in the best interests of the Corporation and its stockholders, give due consideration to all relevant factors, including without limitation the social and economic effects on the employees, customers, suppliers and other constituents of the Corporation and its subsidiaries and on the communities in which the Corporation and its subsidiaries operate or are located.
ARTICLE XIII
ANNUAL AND SPECIAL MEETING OF STOCKHOLDERS
Any action required or permitted to be taken by the holders of the capital stock of the Company must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing of such holders.
ARTICLE XIV
PROHIBITION OF GREENMAIL
A. Any purchase or other acquisition, directly or indirectly, in one or more transactions, by the Company or any Subsidiary (as hereinafter defined) of the Company of any shares of Voting Stock (as hereinafter defined) or any Voting Stock Right (as hereinafter defined) known by the Company to be beneficially owned by any Interested Stockholder (as hereinafter defined) who has purchased or otherwise acquired any such Voting Stock or Voting Stock Right within two years prior to the date of such purchase or other acquisition from
the Company or Subsidiary shall, except as hereinafter expressly provided, require the affirmative vote of at least a majority of all votes entitled to be cast by the holders of the Voting Stock (excluding Voting Stock held by an Interested Stockholder) voting together as a single class. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or any agreement with any national securities exchange, or otherwise, but no such affirmative vote shall be required with respect to any purchase or other acquisition by the Company or any of its Subsidiaries of Voting Stock or Voting Stock Rights purchased at or below Fair Market Value (as hereinafter defined) or made as part of a tender or exchange offer made on the same terms to all holders of such securities and complying with the applicable requirements of the Securities Exchange Act of 1934 (the Exchange Act) and the rules and regulations thereunder or in a Public Transaction (as hereinafter defined).
B. For the purposes of this Article XIV:
1. An Affiliate of, or a person Affiliated with, a specified person, is a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.
2. The term Associate used to indicate a relationship with any person, means (1) any corporation or organization (other than the Company or a Subsidiary of the Company) of which such person is an officer or partner or is, directly or indirectly, the beneficial owner of 5% or more of any class of equity securities, (2) any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity, and (3) any relative or spouse of such person, or any relative of such spouse, who has the same home as such person.
3. A person shall be a beneficial owner of any Voting Stock or Voting Stock Right:
(a) which such person or any of its Affiliates or Associates beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) any right to vote pursuant to any agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any security of any class of the Company or any of its Subsidiaries.
(d) For the purposes of determining whether a person is an Interested Stockholder, the relevant class of securities outstanding shall be deemed to include all such securities of which such person is deemed to be the beneficial owner through application of this subparagraph 3, but shall not include any other securities of such class which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion right, warrants or options, or otherwise, but are not yet issued.
4. Fair Market Value means, for any share of Voting Stock or any Voting Stock Right, the average of the closing sale prices during the 30-day period immediately preceding the repurchase of such Voting Stock or Voting Stock Right, as the case may be, on the Composite Tape for New York Stock Exchange-Listed Stocks, or, if such Voting Stock or Voting Stock Right, as the case may be, is not quoted on the Composite Tape, on the New York Stock Exchange, or, if such Voting Stock or Voting Stock Rights, as the case may be, is not listed on such Exchange, on the principal United States securities exchange registered under the Exchange Act on which such Voting Stock or Voting Stock Right, as the case may be, is listed, or if such Voting Stock or Voting Stock Right, as the case may be, is not listed on any such exchange, the average of the closing bid quotations with respect to a share of such Voting Stock or Voting Stock Right, as the case may be, during the 90-day period immediately preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotations System or any system then in use, or if no such quotations are available, the Fair Market Value on the date in question of a share of such Voting Stock or Voting Stock Right, as the case may be, as determined by the Board of Directors in good faith.
5. Interested Stockholder shall mean any person (other than (i) the Company, (ii) any of its Subsidiaries, (iii) any benefit plan or trust of or for the benefit of the Company or any of its Subsidiaries, (iv) any trustee, agent or other representative of any of the foregoing, or (v) any person who beneficially owned more than 3% of any class of Voting Stock on July 11, 1985), who or which:
(a) is the beneficial owner, directly or indirectly, of more than 3% of any class of Voting Stock (or Voting Stock Rights with respect to more than 3% of any such class); or
(b) is an Affiliate of the Company and at any time within the two-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of more than 3% of any class of Voting Stock (or Voting Stock Rights with respect to more than 3% of any such class); or
(c) is an assignee of or has otherwise succeeded to any shares of any class of Voting Stock (or Voting Stock Rights with respect to more than 3% of any such class) which were at any time within the two-year period immediately prior to the date in question beneficially owned by an Interested Stockholder, unless such assignment or succession shall have occurred pursuant to any Public Transaction or a series of transactions including a Public Transaction.
6. A person shall mean any individual, firm, corporation or other entity (including a group within the meaning of Section 13(d) of the Exchange Act).
7. A Public Transaction shall mean any (i) purchase of shares offered pursuant to an effective registration statement under the Securities Act of 1933, or (ii) open market purchases of shares if, in either such case, the price and other terms of sale are not negotiated by the purchaser and seller of the beneficial interest in the shares.
8. The term Subsidiary shall mean any corporation at least a majority of the outstanding securities of which having ordinary voting power to elect a majority of the board of directors of such corporation (whether or not any other class of securities has or might have voting power by reason of the happening of a contingency) is at the time owned or controlled directly or indirectly by the Company or one of more Subsidiaries or by the Company and one or more Subsidiaries.
9. The term Voting Stock shall mean stock of all classes and series of the Company entitled to vote generally in the election of directors.
10. The term Voting Stock Right shall mean any security convertible into, and any warrant, option or other right of any kind to acquire beneficial ownership of, any Voting Stock, other than securities issued pursuant to any of the Companys employee benefit plans.
C. A majority of the Board of Directors shall have the power and duty to determine for the purposes of this Article XIV, on the basis of information known to it after reasonable inquiry, all facts necessary to determine compliance with this Article XIV, including without limitation,
1. whether:
(a) a person is an Interested Stockholder;
(b) any Voting Stock and Voting Stock Right is beneficially owned by any person;
(c) a person is an Affiliate or Associate of another;
(d) a transaction is a Public Transaction; and
2. the Fair Market Value of any Voting Stock or Voting Stock Right.
D. Notwithstanding anything contained in this Certificate to the contrary, the affirmative vote of at least a majority of all votes entitled to be cast by the holders of capital stock entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal this Article XIV or to adopt any provision inconsistent herewith.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by an authorized officer, as of this 8th day of November, 2016.
CONAGRA FOODS, INC. | ||
a Delaware corporation | ||
By: | /s/ Colleen R. Batcheler | |
Name: Colleen R. Batcheler | ||
Title: Executive Vice President,
General Counsel and Corporate Secretary |
Exhibit 10.1
EXECUTION COPY
TAX MATTERS AGREEMENT
between
ConAgra Foods, Inc.,
on behalf of itself
and the members
of the ConAgra Group,
and
Lamb Weston Holdings, Inc.
on behalf of itself
and the members
of the LW Group
Dated as of November 8, 2016
Table of Contents
Page | ||||||
SECTION 1. | Definitions. | 1 | ||||
SECTION 2. | Sole Tax Sharing Agreement. | 7 | ||||
SECTION 3. | Allocation of Taxes. | 8 | ||||
SECTION 4. | Preparation and Filing of Tax Returns. | 9 | ||||
SECTION 5. | Apportionment of Earnings and Profits and Tax Attributes. | 11 | ||||
SECTION 6. | Utilization of Tax Attributes. | 12 | ||||
SECTION 7. | Deductions and Reporting for Certain Awards. | 13 | ||||
SECTION 8. | Tax Benefits. | 14 | ||||
SECTION 9. | Certain Representations and Covenants. | 14 | ||||
SECTION 10. | Protective Section 336(e) Elections. | 19 | ||||
SECTION 11. | Indemnities. | 19 | ||||
SECTION 12. | Payments. | 21 | ||||
SECTION 13. | Guarantees. | 21 | ||||
SECTION 14. | Communication and Cooperation. | 22 | ||||
SECTION 15. | Audits and Contest. | 23 | ||||
SECTION 16. | Notices. | 24 | ||||
SECTION 17. | Costs and Expenses. | 24 | ||||
SECTION 18. | Effectiveness; Termination and Survival. | 25 | ||||
SECTION 19. | Specific Performance. | 25 | ||||
SECTION 20. | Construction. | 25 | ||||
SECTION 21. | Entire Agreement; Amendments and Waivers. | 26 | ||||
SECTION 22. | Governing Law and Interpretation. | 27 | ||||
SECTION 23. | Dispute Resolution. | 27 | ||||
SECTION 24. | Counterparts. | 27 | ||||
SECTION 25. | Successors and Assigns; Third Party Beneficiaries. | 28 | ||||
SECTION 26. | Authorization, Etc. | 28 | ||||
SECTION 27. | Change in Tax Law. | 28 | ||||
SECTION 28. | Principles. | 28 |
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TAX MATTERS AGREEMENT
This TAX MATTERS AGREEMENT (the Agreement ) is entered into as of November 8, 2016 between ConAgra Foods, Inc. ( ConAgra ), a Delaware corporation, on behalf of itself and the members of the ConAgra Group and Lamb Weston Holdings, Inc. ( SpinCo ), a Delaware corporation, on behalf of itself and the members of the LW Group.
WITNESSETH:
WHEREAS, pursuant to the Tax laws of various jurisdictions, certain members of the LW Group presently file certain Tax Returns on an affiliated, consolidated, combined, unitary, fiscal unity or other group basis (including as permitted by Section 1501 of the Code) with certain members of the ConAgra Group;
WHEREAS, ConAgra and SpinCo have entered into a Separation Agreement, dated as of the date hereof (the Separation Agreement ), pursuant to which the LW Transfer, the Debt Exchange, the Distribution and other related transactions will be consummated;
WHEREAS, the Internal Restructuring, together with the LW Transfer, the Debt Exchange and the Distribution are intended to qualify for the Intended Tax-Free Treatment; and
WHEREAS, ConAgra and SpinCo desire to set forth their agreement on the rights and obligations of ConAgra, SpinCo and the members of the ConAgra Group and the LW Group respectively, with respect to (A) the administration and allocation of federal, state, local and foreign Taxes incurred in Taxable periods beginning prior to the Distribution Date, as defined below, (B) Taxes resulting from the Distribution and transactions effected in connection with the Distribution and (C) various other Tax matters.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:
SECTION 1. Definitions.
(a) As used in this Agreement:
Active Trade or Business has the meaning ascribed to the LW Business in the Separation Agreement.
Affiliate has the meaning set forth in the Separation Agreement.
Agreement has the meaning set forth in the preamble.
Applicable Law (or Applicable Tax Law , as the case may be) means, with respect to any Person, any federal, state, county, municipal, local, multinational or foreign statute, treaty, law, common law, ordinance, rule, regulation, order, writ, injunction, judicial decision, decree, permit or other legally binding requirement of any Governmental Authority applicable to such Person or any of its respective properties, assets, officers, directors, employees, consultants or agents (in connection with such officers, directors, employees, consultants or agents activities on behalf of such Person).
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Business Day has the meaning set forth in the Separation Agreement.
CAP means the IRS Compliance Assurance Process.
Closing of the Books Method means the apportionment of items between portions of a Taxable period based on a closing of the books and records on the close of the Distribution Date (in the event that the Distribution Date is not the last day of the Taxable period, as if the Distribution Date were the last day of the Taxable period), subject to adjustment for items accrued on the Distribution Date that are properly allocable to the Taxable period following the Distribution, as determined by ConAgra in accordance with Applicable Law; provided that Taxes not based upon or measured by net or gross income or specific events shall be apportioned between the Pre- and Post-Distribution Periods on a pro rata basis in accordance with the number of days in each Taxable period.
Code has the meaning set forth in the Separation Agreement.
Combined Group means any group that filed or was required to file (or will file or be required to file) a Tax Return on an affiliated, consolidated, combined, unitary, fiscal unity or other group basis (including as permitted by Section 1501 of the Code) that includes at least one member of the ConAgra Group and at least one member of the LW Group.
Combined Tax Return means a Tax Return filed in respect of federal, state, local or foreign income Taxes for a Combined Group, or any other affiliated, consolidated, combined, unitary, fiscal unity or other group basis (including as permitted by Section 1501 of the Code) Tax Return of a Combined Group.
Company means ConAgra or SpinCo (or the appropriate member of each of their respective Groups), as appropriate.
ConAgra has the meaning ascribed thereto in the preamble.
ConAgra Compensatory Equity Interests means any options, stock appreciation rights, restricted stock, stock units or other rights with respect to ConAgra stock that are granted on or prior to the Distribution Date by any member of the ConAgra Group in connection with employee, independent contractor or director compensation or other employee benefits (including, for the avoidance of doubt, options, stock appreciation rights, restricted stock, restricted stock units, performance share units or other rights issued in respect of any of the foregoing by reason of the Distribution or any subsequent transaction).
ConAgra Group has the meaning set forth in the Separation Agreement.
ConAgra Separate Tax Return means any Tax Return that is required to be filed by, or with respect to, a member of the ConAgra Group that is not a Combined Tax Return.
Debt Exchange has the meaning set forth in the Separation Agreement.
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Distribution has the meaning set forth in the Separation Agreement.
Distribution Date has the meaning set forth in the Separation Agreement.
Distribution Effective Time has the meaning set forth in the Separation Agreement.
Distribution Taxes means any Taxes incurred solely as a result of the failure of the Intended Tax-Free Treatment of the Internal Restructuring, the LW Transfer, the Debt Exchange or the Distribution.
Equity Interests means any stock or other securities treated as equity for Tax purposes, options, warrants, rights, convertible debt, or any other instrument or security that affords any Person the right, whether conditional or otherwise, to acquire stock or to be paid an amount determined by reference to the value of stock.
Escheat Payment means any payment required to be made to a Governmental Authority pursuant to an abandoned property, escheat or similar law.
Existing GRAs has the meaning set forth on Schedule B to this Agreement.
Final Determination means (i) with respect to federal income Taxes, (A) a determination as defined in Section 1313(a) of the Code (including, for the avoidance of doubt, an executed IRS Form 906), (B) the execution of an IRS Form 870-AD (or any successor form thereto), as a final resolution of Tax liability for any Taxable period, except that a Form 870-AD (or successor form thereto) that reserves the right of the taxpayer to file a claim for refund or the right of the IRS to assert a further deficiency shall not constitute a Final Determination with respect to the item or items so reserved or (C) the execution of a CAP Issue Resolution Agreement (or any similar or successor agreement); (ii) with respect to Taxes other than federal income Taxes, any final determination of liability in respect of a Tax that, under Applicable Tax Law, is not subject to further appeal, review or modification through proceedings or otherwise; (iii) with respect to any Tax, any final disposition by reason of the expiration of the applicable statute of limitations (giving effect to any extension, waiver or mitigation thereof); or (iv) with respect to any Tax, the payment of such Tax by any member of the ConAgra Group or any member of the LW Group, whichever is responsible for payment of such Tax under Applicable Tax Law, with respect to any item disallowed or adjusted by a Taxing Authority; provided , in the case of this clause (iv), that the provisions of Section 15 hereof have been complied with, or, if such section is inapplicable, that the Company responsible under this Agreement for such Tax is notified by the Company paying such Tax that it has determined that no action should be taken to recoup such disallowed item, and the other Company agrees with such determination.
Foreign SpinCo Subsidiary means any member of the LW Group that is a controlled foreign corporation (as defined in Section 957 of the Code) with respect to which ConAgra is a United States shareholder (as defined in Section 951(b) of the Code) during the Taxable year of ConAgra that includes the Distribution Date.
Governmental Authority has the meaning set forth in the Separation Agreement.
Group has the meaning set forth in the Separation Agreement.
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Indemnifying Party means the party from which another party is entitled to seek indemnification pursuant to the provisions of Section 11 .
Indemnitee means the party which is entitled to seek indemnification from another party pursuant to the provisions of Section 11 .
Intended Tax-Free Treatment means the qualification of (i) the LW Transfer, together with the Debt Exchange and the Distribution as a reorganization described in Section 368(a)(1)(D) of the Code and of each of ConAgra and SpinCo as a party to the reorganization within the meaning of Section 368(b) of the Code, (ii) the Distribution, as such, as a distribution of SpinCo Common Stock to ConAgras shareholders pursuant to Section 355 of the Code, (iii) the Special Cash Payment as money distributed to ConAgra creditors or shareholders in connection with the reorganization for purposes of Section 361(b) of the Code, (iv) the Special SpinCo Securities Issuance as a tax-free issuance under Section 361(a) of the Code and the Debt Exchange as a tax-free exchange to ConAgra within the meaning of Section 361(c) of the Code and (v) the transactions described on Schedule A as being free from Tax to the extent set forth therein.
Internal Restructuring has the meaning set forth in the Separation Agreement.
IRS means the United States Internal Revenue Service.
Lease has the meaning set forth in the Separation Agreement.
LW Business has the meaning set forth in the Separation Agreement.
LW Group has the meaning set forth in the Separation Agreement.
LW Transfer has the meaning set forth in the Separation Agreement.
NMTC Guaranty Agreements means the Tax Credit Guaranty Agreement between ConAgra Foods, Inc. and The Darton J. Zink Trust, dated as of April 23, 2010, the Tax Credit Guaranty Agreement between ConAgra Foods, Inc. and Hobby Lobby Stores, Inc., dated as of April 23, 2010 and the Tax Credit Guaranty Agreement between ConAgra Foods, Inc. and Gallup, Inc., dated as of April 15, 2014 (all of which relate to the qualification for federal new market tax credits under Section 45D of the Code in connection with the construction of the ConAgra Foods Lamb Weston, Inc. Delhi, Louisiana sweet potato facility).
NMTC Option Agreements means the Option Agreement between Hobby Lobby Stores, Inc., ConAgra Foods Lamb Weston, Inc. and COA Delhi Investment Fund LLC, dated as of April 23, 2010, the Option Agreement between The Darton Brink Trust, ConAgra Foods Lamb Weston, Inc. and COA Delhi Investment Fund LLC, dated as of April 23, 2010 and the Option Agreement between Gallup, Inc., ConAgra Foods Lamb Weston, Inc. and COA Delhi Investment Fund LLC, dated as of April 15, 2014 (all of which relate to the qualification for federal new market tax credits under Section 45D of the Code in connection with the construction of the ConAgra Foods Lamb Weston, Inc. Delhi, Louisiana sweet potato facility).
Option has the meaning set forth in the Separation Agreement.
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Person has the meaning set forth in Section 7701(a)(1) of the Code.
Post-Distribution Period means any Taxable period (or portion thereof) beginning after the Distribution Date.
Pre-Distribution Period means any Taxable period (or portion thereof) ending on or before the Distribution Date.
Separation Agreement has the meaning set forth in the recitals.
Special Cash Payment has the meaning set forth in the Separation Agreement.
Special SpinCo Securities Issuance has the meaning set forth in the Separation Agreement.
SpinCo has the meaning set forth in the preamble.
SpinCo Carried Item shall mean any Tax Attribute of the LW Group that may or must be carried from one Taxable period to another prior Taxable period, or carried from one Taxable period to another subsequent Taxable period, under the Code or other Applicable Tax Law.
SpinCo Common Stock has the meaning set forth in the Separation Agreement.
SpinCo Compensatory Equity Interests means any options, stock appreciation rights, restricted stock, stock units or other rights with respect to the capital stock of SpinCo that are granted on or prior to the Distribution Effective Time by any member of the LW Group in connection with employee, independent contractor or director compensation or other employee benefits.
SpinCo Disqualifying Action means (a) any action (or the failure to take any action) by any member of the LW Group after the Distribution Effective Time (including entering into any agreement, understanding or arrangement or any negotiations with respect to any transaction or series of transactions), (b) any event (or series of events) after the Distribution Effective Time involving the capital stock of SpinCo or any assets of any member of the LW Group or (c) any breach by any member of the LW Group after the Distribution Effective Time of any representation, warranty or covenant made by them in this Agreement that, in each case, would affect the Intended Tax-Free Treatment; provided , however , that the term SpinCo Disqualifying Action shall not include any action entered into pursuant to any Transaction Document or that is undertaken pursuant to the Internal Restructuring, the LW Transfer, the Debt Exchange or the Distribution.
SpinCo Securities has the meaning set forth in the Separation Agreement.
SpinCo Separate Tax Return means any Tax Return that is required to be filed by, or with respect to, any member of the LW Group that is not a Combined Tax Return.
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Tax (and the correlative meaning, Taxes , Taxing and Taxable ) means (i) any tax, including any net income, gross income, gross receipts, recapture, alternative or add-on minimum, sales, use, business and occupation, value-added, trade, goods and services, ad valorem, franchise, profits, net wealth, license, business royalty, withholding, payroll, employment, capital, excise, transfer, recording, severance, stamp, occupation, premium, property, asset, real estate acquisition, environmental, custom duty, impost, obligation, assessment, levy, tariff or other tax, governmental fee or other like assessment or charge of any kind whatsoever (including, but not limited to, any Escheat Payment), together with any interest and any penalty, addition to tax or additional amount imposed by a Taxing Authority; or (ii) any liability of any member of the ConAgra Group or the LW Group for the payment of any amounts described in clause (i) as a result of any express or implied obligation to indemnify any other Person.
Tax Attribute means a net operating loss, net capital loss, unused investment credit, unused foreign tax credit, excess charitable contribution, unused general business credit, alternative minimum tax credit or any other Tax Item that could reduce a Tax liability.
Tax Benefit means any refund, credit, offset or other reduction in otherwise required Tax payments.
Tax Counsel means Davis Polk & Wardwell LLP.
Tax Item means any item of income, gain, loss, deduction, credit, recapture of credit or any other item that can increase or decrease Taxes paid or payable.
Tax Opinions shall mean the legal opinions delivered to ConAgra by Tax Counsel with respect to certain U.S. federal income Tax consequences of the Internal Restructuring, the LW Transfer, the Debt Exchange and the Distribution.
Tax Proceeding means any Tax audit, dispute, examination, contest, litigation, arbitration, action, suits, claim, cause of action, review, inquiry, assessment, hearing, complaint, demand, investigation or proceeding (whether administrative, judicial or contractual).
Tax-Related Losses means, with respect to any Taxes imposed pursuant to any settlement, determination, judgment or otherwise, (i) all accounting, legal and other professional fees, and court costs incurred in connection with such Taxes, as well as any other out-of-pocket costs incurred in connection with such Taxes and (ii) all damages, costs, and expenses associated with stockholder litigation or controversies and any amount paid by any member of the ConAgra Group or any member of the LW Group in respect of the liability of shareholders, whether paid to shareholders or to the IRS or any other Taxing Authority, in each case, resulting from the failure of the Intended Tax-Free Treatment of the Internal Restructuring, the LW Transfer, the Debt Exchange or the Distribution.
Tax Representation Letters means the representations provided by SpinCo and ConAgra to Tax Counsel in connection with the rendering by Tax Counsel of the Tax Opinions.
Tax Return means any Tax return, statement, report, form, election, bill, certificate, claim or surrender (including estimated Tax returns and reports, extension requests and forms, and information returns and reports), or statement or other document or written information filed or required to be filed with any Taxing Authority, including any amendment thereof, appendix, schedule or attachment thereto.
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Taxing Authority means any Governmental Authority (domestic or foreign), including, without limitation, any state, municipality, political subdivision or governmental agency, responsible for the imposition, assessment, administration, collection, enforcement or determination of any Tax.
Transaction Documents has the meaning set forth in the Separation Agreement.
Transfer Taxes means all U.S. federal, state, local or foreign sales, use, privilege, transfer, documentary, stamp, duties, real estate transfer, controlling interest transfer, recording and similar Taxes and fees (including any penalties, interest or additions thereto) imposed upon any member of the ConAgra Group or any member of the LW Group in connection with the Internal Restructuring, the LW Transfer, the Debt Exchange or the Distribution.
(b) Each of the following terms is defined in the Section set forth opposite such term:
Term |
Section |
|
CAP Proceeding |
Section 15(b) | |
Due Date |
Section 12(a) | |
Internal Tax-Free Transactions |
Schedule A | |
Past Practices |
Section 4(e)(i) | |
Section 336(e) Election |
Section 10(a) | |
Section 9(b)(v)(F) Acquisition Transaction |
Section 9(b)(v)(F) | |
SpinCo 951(a) Taxes |
Section 3(b) | |
Tax Arbiter |
Section 23 | |
Tax Benefit Recipient |
Section 8(c) |
(c) All capitalized terms used but not defined herein shall have the same meanings as in the Separation Agreement. Any term used in this Agreement which is not defined in this Agreement or the Separation Agreement shall, to the extent the context requires, have the meaning assigned to it in the Code or the applicable Treasury Regulations thereunder (as interpreted in administrative pronouncements and judicial decisions) or in comparable provisions of Applicable Tax Law.
SECTION 2. Sole Tax Sharing Agreement . Any and all existing Tax sharing agreements or arrangements, written or unwritten, between any member of the ConAgra Group, on the one hand, and any member of the LW Group, on the other hand, if not previously terminated, shall be terminated as of the Distribution Date without any further action by the parties thereto. Following the Distribution, no member of the LW Group or the ConAgra Group shall have any further rights or liabilities thereunder, and, except for Section 4.04(b) of the Separation Agreement, Section 4.2 of the Transition Services Agreement, Section 4.2 of the Reverse Transition Services Agreement, Section 10.3(b) of the Employee Matters Agreement and Sections 3.2 and 3.5 of the Lease, this Agreement shall be the sole Tax sharing agreement between the members of the LW Group on the one hand, and the members of the ConAgra Group, on the other hand.
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SECTION 3. Allocation of Taxes .
(a) General Allocation Principles . Except as provided in Section 3(c ), all Taxes shall be allocated as follows:
(i) Allocation of Taxes for Combined Tax Returns . ConAgra shall be allocated all Taxes reported, or required to be reported, on any Combined Tax Return that any member of the ConAgra Group files or is required to file under the Code or other Applicable Tax Law; provided , however , that to the extent any such Combined Tax Return includes any Tax Item attributable to any member of the LW Group or the LW Business in respect of any Post-Distribution Period, SpinCo shall be allocated all Taxes attributable to such Tax Items as determined by ConAgra in its reasonable discretion.
(ii) Allocation of Taxes for Separate Tax Returns .
(A) ConAgra shall be allocated all Taxes reported, or required to be reported, on a ConAgra Separate Tax Return.
(B) SpinCo shall be allocated all Taxes reported, or required to be reported, on a SpinCo Separate Tax Return.
(iii) Taxes Not Reported on Tax Returns . SpinCo shall be allocated any Tax attributable to any member of the LW Group that is not required to be reported on a Tax Return and ConAgra shall be allocated any Tax attributable to any member of the ConAgra Group that is not required to be reported on a Tax Return.
(b) Allocation Conventions .
(i) All Taxes allocated pursuant to Section 3(a ) shall be allocated in accordance with the Closing of the Books Method; provided , however , that if Applicable Tax Law does not permit a LW Group member to close its Taxable year on the Distribution Date, the Tax attributable to the operations of the members of the LW Group for any Pre-Distribution Period shall be the Tax computed using a hypothetical closing of the books consistent with the Closing of the Books Method; provided further that any and all Taxes reported, or required to be reported, on a SpinCo Separate Tax Return, or a Tax Return of a member of the LW Group to the extent attributable to a member of the LW Group, under Section 951(a) of the Code ( SpinCo 951(a) Taxes ) that, in either case, are attributable to items for a Pre-Distribution Period (determined in accordance with the Closing of the Books Method as though the Taxable year of each controlled foreign corporation (within the meaning of Section 957 of the Code) giving rise to items ended on the Distribution Date) shall be allocated to ConAgra, and that any SpinCo 951(a) Taxes that, in either case, are attributable to items for a Post-Distribution Period (determined as though the Taxable year of each controlled foreign corporation (within the meaning of Section 957 of the Code) giving rise to items ended on the Distribution Date) shall be allocated to SpinCo;
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(ii) Any Tax Item of SpinCo or any member of their respective Groups arising from a transaction engaged in outside the ordinary course of business on the Distribution Date after the Distribution Effective Time shall be allocable to SpinCo and any such transaction by or with respect to SpinCo or any member of their respective Groups occurring after the Distribution Effective Time shall be treated for all Tax purposes (to the extent permitted by Applicable Tax Law) as occurring at the beginning of the day following the Distribution Date in accordance with the principles of Treasury Regulations Section 1.1502-76(b) (assuming no election is made under section 1.1502-76(b)(2)(ii) of the Treasury Regulations (relating to a ratable allocation of a years Tax Items)); provided that the foregoing shall not include any action that is undertaken pursuant to the Internal Restructuring, the LW Transfer, the Debt Exchange or the Distribution.
(c) Special Allocation Rules . Notwithstanding any other provision in this Section 3, the following Taxes shall be allocated as follows:
(i) Transfer Taxes . Transfer Taxes shall be allocated 50% to ConAgra and 50% to SpinCo.
(ii) Taxes Relating to ConAgra Compensatory Equity Interests . Any Tax liability (including, for the avoidance of doubt, the satisfaction of any withholding Tax obligation) relating to the issuance, exercise, vesting or settlement of any ConAgra Compensatory Equity Interest shall be allocated in a manner consistent with Section 7.
(iii) Distribution Taxes and Tax-Related Losses . Any liability for Distribution Taxes and Tax-Related Losses resulting from a SpinCo Disqualifying Action shall be allocated in a manner consistent with Section 11(a)(iii).
(iv) Taxes Relating to Deferred Intercompany Transactions . Any liability for income Taxes attributable to transactions described in Treasury Regulations Section 1.1502-13 or comparable provisions of state or local law that are solely between or among members of the LW Group and that are entered into prior to the Distribution Date shall be allocated to SpinCo.
SECTION 4. Preparation and Filing of Tax Returns .
(a) ConAgra Group Combined Tax Returns .
(i) ConAgra shall prepare and file, or cause to be prepared and filed, Combined Tax Returns for which a member of the ConAgra Group is required or, as provided in Section 4(e)(iv ), elects, to file a Combined Tax Return. Each member of any such Combined Group shall execute and file such consents, elections and other documents as may be required, appropriate or otherwise requested by ConAgra in connection with the filing of such Combined Tax Returns.
(ii) To the extent that any member of the LW Group is included in any Combined Return for a Taxable period that includes the Distribution Date, ConAgra shall include in such Combined Return the results of such member of the LW Group on the basis of the Closing of the Books Method to the extent permitted by Applicable Tax Law.
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(b) SpinCo Separate Tax Returns .
(i) Tax Returns to Be Prepared by ConAgra . ConAgra shall prepare (or cause to be prepared) and, to the extent permitted by Applicable Law, file (or cause to be filed) all SpinCo Separate Tax Returns that relate in whole or in part to any Pre-Distribution Period for which ConAgra is liable for any Taxes; provided , however , that with respect to any such Tax Return that is prepared by ConAgra but required to be filed by a member of the LW Group under Applicable Law, ConAgra shall provide such Tax Returns to SpinCo at least 45 days prior to the due date for filing such Tax Returns (taking into account any applicable extension periods) with the amount of any Taxes shown as due thereon, and SpinCo shall, subject to Section 4(d), execute and file (or cause to be executed and filed) the Tax Returns.
(ii) Tax Returns to Be Prepared by SpinCo . SpinCo shall prepare and file (or cause to be prepared and filed) all SpinCo Separate Tax Returns that are not described in Section 4(b)(i ).
(c) Provision of Information; Timing . SpinCo shall maintain all necessary information for ConAgra (or any of its Affiliates) to file any Tax Return that ConAgra is required or permitted to file under this Section 4, and shall provide to ConAgra all such necessary information in accordance with the ConAgra Groups past practice. ConAgra shall maintain all necessary information for SpinCo (or any of its Affiliates) to file any Tax Return that SpinCo is required or permitted to file under this Section 4, and shall provide SpinCo with all such necessary information in accordance with the LW Groups past practice.
(d) Review of SpinCo Separate Tax Returns . The party that is required to prepare a SpinCo Separate Tax Return (other than a SpinCo Separate Tax Return that relates solely to a Post-Distribution Period) that is required to be filed after the Distribution Date shall submit a draft of such Tax Return to the non-preparing party, if requested, to the extent (A) such Tax Return relates to Taxes for which the requesting Party would reasonably be expected to be liable, or (B) such Tax Return relates to Taxes for which the requesting Party would reasonably be expected to have a claim for Tax Benefits under this Agreement. The Party responsible for preparing (or causing to be prepared) the relevant Tax Return shall (x) use its reasonable best efforts to make such portion of such Tax Return available for review as required under this paragraph sufficiently in advance of the due date for filing of such Tax Return to provide the requesting Party with a meaningful opportunity to analyze and comment on such Tax Return and (y) use reasonable efforts to have such Tax Return modified before filing, taking into account the Person responsible for payment of the Tax (if any) reported on such Tax Return and whether the amount of Tax liability allocable to the requesting Party with respect to such Return is material. The Parties shall attempt in good faith to resolve any issues arising out of the review of such Tax Return.
(e) Special Rules Relating to the Preparation of Tax Returns .
(i) General Rule . Except as provided in this Section 4(e)(i ), SpinCo shall prepare (or cause to be prepared) any Tax Return for which it is responsible under this Section 4 in accordance with past practices, accounting methods, elections or conventions ( Past Practices ) used by the members of the ConAgra Group prior to the Distribution Date with respect to such Tax Return, and to the extent any items, methods or positions are not covered by Past Practices, as directed by ConAgra.
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(ii) Consistency with Intended Tax-Free Treatment . All Tax Returns that include any member of the ConAgra Group or any member of the LW Group shall be prepared in a manner that is consistent with the Intended Tax-Free Treatment.
(iii) SpinCo Separate Tax Returns . With respect to any SpinCo Separate Tax Return for which SpinCo is responsible pursuant to this Agreement, SpinCo and the other members of the LW Group shall include such Tax Items in such SpinCo Separate Tax Return in a manner that is consistent with the inclusion of such Tax Items in any related Tax Return for which ConAgra is responsible to the extent such Tax Items are allocated in accordance with this Agreement.
(iv) Election to File Combined Tax Returns . ConAgra shall have the sole discretion to file any Combined Tax Return if the filing of such Tax Return is elective under Applicable Tax Law.
(v) Preparation of Transfer Tax Returns . The Company required under Applicable Tax Law to file any Tax Returns in respect of Transfer Taxes shall prepare and file (or cause to be prepared and filed) such Tax Returns. If required by Applicable Tax Law, ConAgra and SpinCo shall, and shall cause their respective Affiliates to, cooperate in preparing and filing, and join the execution of, any such Tax Returns.
(f) Payment of Taxes . ConAgra shall pay (or cause to be paid) to the proper Taxing Authority (or to SpinCo with respect to any SpinCo Separate Tax Return prepared by ConAgra but required to be filed by a member of the LW Group under Applicable Tax Law) the Tax shown as due on any Tax Return for which a member of the ConAgra Group is responsible under this Section 4, and SpinCo shall pay (or cause to be paid) to the proper Taxing Authority the Tax shown as due on any Tax Return for which a member of the LW Group is responsible under this Section 4. If any member of the ConAgra Group is required to make a payment to a Taxing Authority for Taxes allocated to SpinCo under Section 3, SpinCo shall pay the amount of such Taxes to ConAgra in accordance with Section 11 and Section 12. If any member of the LW Group is required to make a payment to a Taxing Authority for Taxes allocated to ConAgra under Section 3, ConAgra shall pay the amount of such Taxes to SpinCo in accordance with Section 11 and Section 12.
SECTION 5. Apportionment of Earnings and Profits and Tax Attributes .
(a) Tax Attributes arising in a Pre-Distribution Period will be allocated to (and the benefits and burdens of such Tax Attributes will inure to) the members of the ConAgra Group and the members of the LW Group in accordance with ConAgras historical practice (including historical methodologies for making corporate allocations), the Code, Treasury Regulations, and any applicable state, local and foreign law, as determined by ConAgra in its sole discretion.
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(b) ConAgra shall in good faith advise SpinCo as soon as reasonably practicable after the close of the relevant Taxable period in which the Distribution occurs in writing of the portion, if any, of any earnings and profits, Tax Attributes, tax basis, overall foreign loss or other consolidated, combined or unitary attribute which ConAgra determines shall be allocated or apportioned to the members of the LW Group under Applicable Tax Law. All members of the LW Group shall prepare all Tax Returns in accordance with such written notice. In the event of an adjustment to the earnings and profits, any Tax Attributes, tax basis, overall foreign loss or other consolidated, combined or unitary attribute determined by ConAgra, ConAgra shall promptly notify SpinCo in writing of such adjustment. For the avoidance of doubt, ConAgra shall not be liable to any member of the LW Group for any failure of any determination under this Section 5(b ) to be accurate under Applicable Tax Law, provided such determination was made in good faith.
(c) Except as otherwise provided herein, to the extent that the amount of any earnings and profits, Tax Attributes, tax basis, overall foreign loss or other consolidated, combined or unitary attribute allocated to members of the ConAgra Group or the LW Group pursuant to Section 5(b) is later reduced or increased by a Taxing Authority or as a result of a Tax Proceeding, such reduction or increase shall be allocated to the Company to which such earnings and profits, Tax Attributes, tax basis, overall foreign loss or other consolidated, combined or unitary attribute was allocated pursuant to this Section 5 , as determined by ConAgra in good faith.
SECTION 6. Utilization of Tax Attributes .
(a) Amended Returns . Any amended Tax Return or claim for a refund with respect to any member of the LW Group may be made only by the party responsible for preparing the original Tax Return with respect to such member of the LW Group pursuant to Section 4.
(b) ConAgra Discretion . SpinCo hereby agrees that ConAgra shall be entitled to determine in its sole discretion whether to (x) file or to cause to be filed any claim for a refund or adjustment of Taxes with respect to any Combined Return in order to claim in any Pre-Distribution Period any SpinCo Carried Item, (y) make or cause to be made any available elections to waive the right to claim in any Pre-Distribution Period, with respect to any Combined Return, any SpinCo Carried Item, and (z) make or cause to be made any affirmative election to claim in any Pre-Distribution Period any SpinCo Carried Item. Subject to Section 6(c), SpinCo shall submit a written request to ConAgra in order to seek ConAgras consent with respect to any of the actions described in this Section 6(b).
(c) SpinCo Carrybacks to Combined Returns .
(i) Each member of the SpinCo Group shall elect, to the extent permitted by Applicable Tax Law, to forgo the right to carry back any SpinCo Carried Item from a Post-Distribution Period to a Combined Return.
(ii) If a member of the SpinCo Group determines that it is required by Applicable Tax Law to carry back any SpinCo Carried Item to a Combined Return, it shall notify ConAgra in writing of such determination at least 90 days prior to filing the Tax Return on which such carryback will be reflected. If ConAgra disagrees with such determination, the parties shall resolve their disagreement pursuant to the procedures set forth in Section 23.
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(iii) For the avoidance of doubt, if a SpinCo Carried Item is carried back to a Combined Return for any reason, no member of the ConAgra Group shall be required to make any payment to, or otherwise compensate, any member of the SpinCo Group in respect of such SpinCo Carried Item.
(b) Carryforwards to Separate Tax Returns . If a portion or all of any Tax Attribute is allocated to a member of a Combined Group pursuant to Section 5, and is carried forward or back to a SpinCo Separate Tax Return, any Tax Benefits arising from such carryforward shall be retained by the LW Group. If a portion or all of any Tax Attribute is allocated to a member of a Combined Group pursuant to Section 5, and is carried forward or back to a ConAgra Separate Tax Return, any Tax Benefits arising from such carryforward or carryback shall be retained by the ConAgra Group.
SECTION 7. Deductions and Reporting for Certain Awards .
(a) Deductions . To the extent permitted by Applicable Tax Law, income Tax deductions with respect to the issuance, exercise, vesting or settlement after the Distribution Date of any ConAgra Compensatory Equity Interests or SpinCo Compensatory Equity Interests shall be claimed (A) in the case of an active officer or employee, solely by the Group that employs such Person at the time of such issuance, exercise, vesting, or settlement, as applicable; (B) in the case of a former officer or employee, solely by the Group that was the last to employ such Person and; (C) in the case of a director or former director (who is not an officer or employee or former officer or employee of a member of either Group), (x) solely by the ConAgra Group if such person was, at any time before or after the Distribution, a director of any member of the ConAgra Group, and (y) in any other case, solely by the LW Group.
(b) If, notwithstanding clause (a), the LW Group actually utilizes any deductions for a Taxable period ending after the Distribution Date with respect to (i) the issuance, exercise, vesting or settlement after the Distribution Date of any ConAgra Compensatory Equity Interests, (ii) any liability with respect to compensation required to be paid or satisfied by, or otherwise allocated to, any member of the ConAgra Group in accordance with any Transaction Document, SpinCo shall promptly remit an amount equal to the overall net reduction in actual cash Taxes paid by the LW Group (determined on a with and without basis) resulting from the event giving rise to such deduction (and any income in respect of such event, subject to Section 12(b )) in the year of such event. If a Taxing Authority subsequently reduces or disallows the use of such a deduction by the LW Group, ConAgra shall return an amount equal to the overall net increase in Tax liability of the LW Group owing to the Taxing Authority to the remitting party.
(c) Withholding and Reporting . For any Taxable period (or portion thereof), except as ConAgra may at any time determine in its reasonable discretion, ConAgra shall satisfy, or shall cause to be satisfied, all applicable withholding and reporting responsibilities (including all income, payroll or other Tax reporting related to income to any current or former employees) with respect to the issuance, exercise, vesting or settlement of such ConAgra Compensatory
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Equity Interests that settle with or with respect to stock of ConAgra. For any Taxable period (or portion thereof), SpinCo shall satisfy, or shall cause to be satisfied, all applicable withholding and reporting responsibilities (including all income, payroll or other Tax reporting related to income to any current or former employees) with respect to the exercise, vesting or settlement of such SpinCo Compensatory Equity Interests that settle with or with respect to stock of SpinCo. ConAgra and SpinCo acknowledge and agree that the parties shall cooperate with each other and with third-party providers to effectuate withholding and remittance of Taxes, as well as required Tax reporting, in a timely manner.
SECTION 8. Tax Benefits .
(a) ConAgra Tax Benefits . ConAgra shall be entitled to any Tax Benefits (including, in the case of any refund received, any interest thereon actually received) received by any member of the ConAgra Group or any member of the LW Group, other than any Tax Benefits (or any amounts in respect of Tax Benefits) to which SpinCo is entitled pursuant to Section 8(b). SpinCo shall not be entitled to any Tax Benefits received by any member of the ConAgra Group or the LW Group, except as set forth in Section 8(b).
(b) SpinCo Tax Benefits . SpinCo shall be entitled to any Tax Benefits (including, in the case of any refund received, any interest thereon actually received) received by any member of the ConAgra Group or any member of the LW Group after the Distribution Date with respect to any Tax allocated to a member of the LW Group under this Agreement (including, for the avoidance of doubt, any amounts allocated to SpinCo pursuant to Section 3(c)(iii) or Section 3(c)(iv)).
(c) A Company receiving (or realizing) a Tax Benefit to which another Company is entitled hereunder (a Tax Benefit Recipient ) shall pay over the amount of such Tax Benefit (including interest received from the relevant Taxing Authority, but net of any Taxes imposed with respect to such Tax Benefit and any other reasonable costs) within thirty (30) days of receipt thereof (or from the due date for payment of any Tax reduced thereby); provided, however , that the other Company, upon the request of such Tax Benefit Recipient, shall repay the amount paid to the other Company (plus any penalties, interest or other charges imposed by the relevant Taxing Authority) in the event that, as a result of a subsequent Final Determination, a Tax Benefit that gave rise to such payment is subsequently disallowed.
SECTION 9. Certain Representations and Covenants .
(a) Representations .
(i) SpinCo and each other member of the LW Group represents that as of the date hereof, and covenants that as of the Distribution Date, there is no plan or intention:
(A) to liquidate SpinCo or to merge or consolidate any member of the LW Group with any other Person subsequent to the Distribution;
(B) to sell or otherwise dispose of any material asset of any member of the LW Group, except in the ordinary course of business;
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(C) to take or fail to take any action in a manner that is inconsistent with the written information and representations furnished by SpinCo to Tax Counsel in connection with the Tax Representation Letters or Tax Opinions;
(D) to repurchase stock of SpinCo other than in a manner that satisfies the requirements of Section 4.05(1)(b) of IRS Revenue Procedure 96-30 (as in effect prior to the amendment of such Revenue Procedure by IRS Revenue Procedure 2003-48) and consistent with any representations made to Tax Counsel in connection with the Tax Representation Letters;
(E) to take or fail to take any action in a manner that management of SpinCo knows, or should know, is reasonably likely to contravene any Existing GRA or (ii) any agreement with a Taxing Authority entered into prior to the Distribution Date to which any member of the LW Group is a party; or
(F) to enter into any negotiations, agreements, or arrangements with respect to transactions or events (including stock issuances, pursuant to the exercise of options or otherwise, option grants, the adoption of, or authorization of shares under, a stock option plan, capital contributions, or acquisitions, but not including the Distribution) that could reasonably be expected to cause the Distribution to be treated as part of a plan (within the meaning of Section 355(e) of the Code) pursuant to which one or more Persons acquire directly or indirectly SpinCo stock representing a 50% or greater interest within the meaning of Section 355(d)(4) of the Code.
(b) Covenants .
(i) SpinCo shall not, and shall not permit any other member of the LW Group to, take or fail to take any action that constitutes a SpinCo Disqualifying Action.
(ii) SpinCo shall not, and shall not permit any other member of the LW Group to, take or fail to take any action that is inconsistent with the information and representations furnished by SpinCo to Tax Counsel in connection with the Tax Representation Letters or Tax Opinions;
(iii) SpinCo shall not, and shall not permit any other member of the LW Group to, take or fail to take any action in a manner that management of SpinCo knows, or should know, is reasonably likely to contravene any agreement with a Taxing Authority entered into prior to the Distribution Date to which any member of the LW Group or the ConAgra Group is a party;
(iv) SpinCo shall not, and shall not permit any other member of the LW Group to, take or fail to take any action with respect to the SpinCo Securities that would result in the (x) retirement or repurchase, in whole or in part, of the SpinCo Securities, (y) any change in obligor of the SpinCo Securities, or (z) the occurrence of a significant modification within the meaning of Treasury Regulations Section 1.1001-3(e) of the SpinCo Securities, in each case, on or prior to the fifth anniversary of the Distribution Date.
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(v) During the two-year period following the Distribution Date:
(A) SpinCo shall (w) maintain its status as a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code, (x) not engage in any transaction that would result in it ceasing to be a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code, (y) cause each other member of the LW Group whose Active Trade or Business is relied upon for purposes of qualifying the Distribution for the Intended Tax-Free Treatment to maintain its status as a company engaged in such Active Trade or Business for purposes of Section 355(b)(2) of the Code and any such other Applicable Tax Law, and (z) not engage in any transaction or permit any other member of the LW Group to engage in any transaction that would result in a member of the LW Group described in clause (z) hereof ceasing to be a company engaged in the relevant Active Trade or Business for purposes of Section 355(b)(2) of the Code or such other Applicable Tax Law, taking into account Section 355(b)(3) of the Code for purposes of each of clauses (w) through (z) hereof;
(B) SpinCo shall not repurchase stock of SpinCo in a manner contrary to the requirements of Section 4.05(1)(b) of IRS Revenue Procedure 96-30 (as in effect prior to the amendment of such Revenue Procedure by IRS Revenue Procedure 2003-48) or inconsistent with any representations made by SpinCo to Tax Counsel in connection with the Tax Representation Letters;
(C) SpinCo shall not, and shall not agree to, merge, consolidate or amalgamate with any other Person;
(D) SpinCo shall not, and shall not permit any other member of the LW Group to, or to agree to, sell or otherwise issue to any Person, or redeem or otherwise acquire from any Person, any Equity Interests of SpinCo or of any other member of the LW Group; provided , however , that SpinCo may issue Equity Interests to the extent such issuances satisfy Safe Harbor VIII (relating to acquisitions in connection with a persons performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulations Section 1.355-7(d);
(E) SpinCo shall not, and shall not permit any other member of the LW Group to (I) solicit any Person to make a tender offer for, or otherwise acquire or sell, the Equity Interests of SpinCo, (II) participate in or support any unsolicited tender offer for, or other acquisition, issuance or disposition of, the Equity Interests of SpinCo or (III) approve or otherwise permit any proposed business combination or any transaction which, in the cause of clauses (I) or (II), individually or in the aggregate, together with any transaction occurring within the four-year period beginning on the date which is two years before the Distribution Date and any other transaction which is part of a plan or series of related transactions (within the meaning of Section 355(e) of the Code) that includes the Distribution, could result in one or more Persons acquiring (except
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for acquisitions that otherwise satisfy Safe Harbor VIII (relating to acquisitions in connection with a persons performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355-7(d)) directly or indirectly stock representing a 40% or greater interest, by vote or value, in SpinCo (or any successor thereto) (any such transaction, a Proposed Acquisition Transaction ); provided further that any clarification of, or change in, the statute or regulations promulgated under Section 355(e) of the Code shall be incorporated in the restrictions in this clause (viii) and the interpretation thereof;
(F) if any member of the LW Group proposes to enter into any transaction or series of transactions that is not a Proposed Acquisition Transaction but would be a Proposed Acquisition Transaction if the percentage reflected in the definition of Proposed Acquisition Transaction were 25% instead of 40% (a Section 9(b)(v)(F) Acquisition Transaction ) or, to the extent SpinCo has the right to prohibit any Section 9(b)(v)(F) Acquisition Transaction, proposes to permit any Section 9(b)(v)(F) Acquisition Transaction to occur, in each case, SpinCo shall provide ConAgra, no later than 10 Business Days following the signing of any written agreement with respect to the Section 9(b)(v)(F) Acquisition Transaction, a written description of such transaction (including the type and amount of Equity Interests of SpinCo to be issued in such transaction) and a certificate of the board of directors of SpinCo to the effect that the Section 9(b)(v)(F) Acquisition Transaction is not a Proposed Acquisition Transaction.
(G) SpinCo shall not, and shall not permit any other member of the LW Group to, amend its certificate of incorporation (or other organizational documents), or take any other action, whether through a stockholder vote or otherwise, affecting the voting rights of the Equity Interests of SpinCo (including, without limitation, through the conversion of one class of Equity Interests of SpinCo into another class of Equity Interests of SpinCo).
(vi) SpinCo shall not take or fail to take, or permit any other member of the LW Group to take or fail to take, any action which prevents or could reasonably be expected to result in Tax treatment that is inconsistent with the Intended Tax-Free Treatment.
(vii) With respect to any Foreign SpinCo Subsidiary, SpinCo shall not, and shall not permit any other member of the LW Group to, for the period after the Distribution Date through May 28, 2017:
(A) make or change any Tax election, amend any Tax Return, change any method of Tax accounting or change the Taxable period of any Foreign SpinCo Subsidiary for any Tax year for U.S. or foreign tax reporting purposes that includes the Distribution Date;
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(B) cause or permit a distribution (within the meaning of Section 301 of the Code) to be made with respect to the capital stock of any Foreign SpinCo Subsidiary;
(C) make or cause to be made any investment in U.S. property within the meaning of Section 956 of the Code; or
(D) restructure the business of any Foreign SpinCo Subsidiary or engage in any extraordinary transaction;
in each case, if such transaction would be reasonably likely to (i) generate earnings and profits of the Foreign SpinCo Subsidiary (as determined under the Code) that is taxed at a rate materially lower than the statutory rate applicable to the Foreign SpinCo Subsidiary in the applicable jurisdiction, (ii) give rise to any income to ConAgra or ConAgra Group under Section 951 of the Code or (iii) would otherwise adversely impact the amount of ConAgra or ConAgra Groups associated deemed-paid foreign tax credits within the meaning of Section 902 of the Code.
(viii) SpinCo shall, or shall cause the relevant SpinCo Subsidiary to, enter into new gain recognition agreements with respect to the Existing GRAs pursuant to Section 1.367(a)-8 of the Treasury Regulations so as to render an exception set forth in Section 1.367(a)-8(k) available with respect to any triggering event arising by reason of the transactions contemplated by the Transaction Documents. Each such new gain recognition agreement shall, to the extent consistent with the corresponding Existing GRA, contain an election under Section 1.367(a)-8(c)(2)(vi) to report any gain recognized under Section 1.367(a)-8(c)(1)(i) in the taxable year during which a gain recognition event occurs.
(ix) From the date hereof until April 24, 2017, SpinCo shall not, and shall cause each other member of the LW Group to not, take any action or fail to take any action that could reasonably be expected to give rise to a Credit Recapture, as such term is defined under the NMTC Guaranty Agreements.
(x) From the date hereof until June 24, 2017, SpinCo shall not, and shall cause each other member of the LW Group to not, take any action inconsistent with the obligations of SpinCo or any other member of the LW Group under the NMTC Option Agreements.
(c) SpinCo Covenants Exceptions . Notwithstanding the provisions of Section 9(b), SpinCo and the other members of the LW Group may take any action that would reasonably be expected to be inconsistent with the covenants contained in (b ), if either: (i) SpinCo notifies ConAgra of its proposal to take such action and SpinCo and ConAgra obtain a ruling from the IRS to the effect that such action will not affect the Intended Tax-Free Treatment, provided that SpinCo agrees in writing to bear any expenses associated with obtaining such a ruling and, provided further that the LW Group shall not be relieved of any liability under Section 11(a ) of this Agreement by reason of seeking or having obtained such a ruling; or (ii) SpinCo notifies
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ConAgra of its proposal to take such action and obtains an unqualified opinion of counsel (A) from a Tax advisor recognized as an expert in federal income Tax matters and acceptable to ConAgra in its sole discretion, (B) on which ConAgra may rely and (C) to the effect that such action will not affect the Intended Tax-Free Treatment, provided further that the LW Group shall not be relieved of any liability under Section 11(a ) of this Agreement by reason of having obtained such an opinion.
SECTION 10. Protective Section 336(e) Elections .
(a) Section 336(e) Election. Pursuant to Treasury Regulations Sections 1.336-2(h)(1)(i) and 1.336-2(j), ConAgra and SpinCo agree that ConAgra shall make a timely protective election under Section 336(e) of the Code and the Treasury Regulations issued thereunder for each member of the LW Group that is a domestic corporation for U.S. federal income Tax purposes with respect to the Distribution (a Section 336(e) Election ). It is intended that a Section 336(e) Election will have no effect unless the Distribution is a qualified stock disposition, as defined in Treasury Regulations Section 1.336(e)-1(b)(6), by reason of the application of Treasury Regulations Section 1.336-1(b)(5)(i)(B) or Treasury Regulations Section 1.336-1(b)(5)(ii).
(b) ConAgra TRA . If any failure of the Intended Tax-Free Treatment of the Internal Restructuring, the LW Transfer, the Debt Exchange or the Distribution results in Taxes (including any Taxes attributable to the Section 336(e) Election) that are not allocated to SpinCo pursuant to Section 3, (i) ConAgra shall be entitled to periodic payments from SpinCo equal to the product of (x) 85% of the Tax savings arising from the step-up in Tax basis resulting from the Section 336(e) Election and (y) the percentage of Taxes airing from such failure that are not allocated to SpinCo pursuant to Section 3, and (ii) the Parties shall negotiate in good faith the terms of a tax receivable agreement to govern the calculation of such payments; provided that any such tax saving in clause (i) shall be determined using a with and without methodology (treating any deductions or amortization attributable to the step-up in tax basis resulting from the Section 336(e) Election as the last items claimed for any taxable year, including after the utilization of any carryforwards). Notwithstanding the foregoing, ConAgra may, at its sole discretion, waive its right to receive any and all payments pursuant to this Section 10(b).
SECTION 11 . Indemnities .
(a) SpinCo Indemnity to ConAgra . SpinCo and each other member of the LW Group shall jointly and severally indemnify ConAgra and the other members of the ConAgra Group against, and hold them harmless, without duplication, from:
(i) any Tax liability allocated to SpinCo pursuant to Section 3;
(ii) any Tax liability and Tax-Related Losses attributable to a breach, after the Distribution Effective Time, by SpinCo or any other member of the LW Group of any representation or covenant contained in this Agreement.
(iii) any Distribution Taxes and Tax-Related Losses attributable to a SpinCo Disqualifying Action (including, for the avoidance of doubt, any Taxes and Tax-Related Losses resulting from any action for which the conditions set forth in Section 9(c) are satisfied); and
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(iv) all liabilities, costs, expenses (including, without limitation, reasonable expenses of investigation and attorneys fees and expenses), losses, damages, assessments, settlements or judgments arising out of or incident to the imposition, assessment or assertion of any Tax liability or damage described in (i), (ii) or (iii), including those incurred in the contest in good faith in appropriate proceedings relating to the imposition, assessment or assertion of any such Tax, liability or damage.
(b) ConAgra Indemnity to SpinCo . Except in the case of any liabilities described in Section 11(a ), ConAgra and each other member of the ConAgra Group will jointly and severally indemnify SpinCo and the other members of the LW Group against, and hold them harmless, without duplication, from:
(i) any Tax liability allocated to ConAgra pursuant to Section 3;
(ii) any Taxes imposed on any member of the LW Group under Treasury Regulations Section 1.1502-6 (or similar or analogous provision of state, local or foreign law) solely as a result of any such member being or having been a member of a Combined Group; and
(iii) all liabilities, costs, expenses (including, without limitation, reasonable expenses of investigation and attorneys fees and expenses), losses, damages, assessments, settlements or judgments arising out of or incident to the imposition, assessment or assertion of any Tax liability or damage described in (i) or (ii), including those incurred in the contest in good faith in appropriate proceedings relating to the imposition, assessment or assertion of any such Tax, liability or damage;
(c) Discharge of Indemnity . SpinCo, ConAgra and the members of their respective Groups shall discharge their obligations under Section 11(a ) or Section 11(b ) hereof, respectively, by paying the relevant amount in accordance with Section 12, within 30 Business Days of demand therefor. Any such demand shall include a statement showing the amount due under Section 11(a ) or Section 11(b ), as the case may be. Notwithstanding the foregoing, if any member of the LW Group or any member of the ConAgra Group disputes in good faith the fact or the amount of its obligation under Section 11(a ) or Section 11(b ), then no payment of the amount in dispute shall be required until any such good faith dispute is resolved in accordance with Section 23 hereof; provided , however , that any amount not paid within 30 Business Days of demand therefor shall bear interest as provided in Section 12.
(d) Tax Benefits . If an indemnification obligation of any Indemnifying Party under this Section 11 arises in respect of an adjustment that makes allowable to an Indemnitee any Tax Benefit which would not, but for such adjustment, be allowable, then any such indemnification obligation shall be an amount equal to (i) the amount otherwise due but for this Section 11(d ), minus (ii) the reduction in actual cash Taxes payable by the Indemnitee in the taxable year such indemnification obligation arises and the two taxable years following such year, determined on a with and without basis.
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SECTION 12 . Payments .
(a) Timing . All payments to be made under this Agreement (excluding, for the avoidance of doubt, any payments to a Taxing Authority described herein) shall be made in immediately available funds. Except as otherwise provided, all such payments will be due thirty (30) Business Days after the receipt of notice of such payment or, where no notice is required, thirty (30) Business Days after the fixing of liability or the resolution of a dispute (the Due Date ). Payments shall be deemed made when received. Any payment that is not made on or before the Due Date shall bear interest at the rate equal to the prime rate as published on such Due Date in the Wall Street Journal, Eastern Edition, for the period from and including the date immediately following the Due Date through and including the date of payment. With respect to any payment required to be made under this Agreement, ConAgra has the right to designate, by written notice to SpinCo, which member of the ConAgra Group will make or receive such payment.
(b) Treatment of Payments . To the extent permitted by Applicable Tax Law, any payment made by ConAgra or any member of the ConAgra Group to SpinCo or any member of the LW Group, or by SpinCo or any member of the LW Group to ConAgra or any member of the ConAgra Group, pursuant to this Agreement, the Separation Agreement or any other Transaction Document that relates to Taxable periods (or portions thereof) ending on or before the Distribution Date shall be treated by the parties hereto for all Tax purposes as a distribution by SpinCo to ConAgra, or a capital contribution from ConAgra to SpinCo, as the case may be; provided, however, that any payment made pursuant to Section 1.03 of the Separation Agreement shall instead be treated as if the party required to make a payment of received amounts had received such amounts as agent for the other party; provided further that any payment made pursuant to Sections 4.1, 4.3 or 4.4 of the Transition Services Agreement or Sections 4.1, 4.3 or 4.4 of the Reverse Transition Services Agreement shall instead be treated as a payment for services; provided further that any payment made pursuant to Sections 3.3, 3.5, 10.1, and 10.2 of the Lease shall instead be treated as a payment made by a lessee to a lessor; provided further that any payment made pursuant to Sections 1 or 4 of the Option shall instead be treated as a payment made by an optionee to an optionor. In the event that a Taxing Authority asserts that a partys treatment of a payment described in this Section 12(b ) should be other than as required herein, such party shall use its reasonable best efforts to contest such assertion in a manner consistent with Section 15 of this Agreement.
(c) No Duplicative Payment . It is intended that the provisions of this Agreement shall not result in a duplicative payment of any amount required to be paid under the Separation Agreement or any other Transaction Document, and this Agreement shall be construed accordingly.
SECTION 13 . Guarantees . ConAgra or SpinCo, as the case may be, shall guarantee or otherwise perform the obligations of each other member of the ConAgra Group or the LW Group, respectively, under this Agreement.
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SECTION 14. Communication and Cooperation .
(a) Consult and Cooperate . ConAgra and SpinCo shall consult and cooperate (and shall cause each other member of their respective Groups to consult and cooperate) fully at such time and to the extent reasonably requested by the other party in connection with all matters subject to this Agreement. Such cooperation shall include, without limitation:
(i) the retention, and provision on reasonable request, of any and all information including all books, records, documentation or other information pertaining to Tax matters relating to the LW Group (or, in the case of any Tax Return of the ConAgra Group, the portion of such return that relates to Taxes for which the LW Group may be liable pursuant to this Agreement), any necessary explanations of information, and access to personnel, until one year after the expiration of the applicable statute of limitation (giving effect to any extension, waiver or mitigation thereof);
(ii) the execution of any document that may be necessary (including to give effect to Section 15) or helpful in connection with any required Tax Return or in connection with any audit, proceeding, suit or action; and
(iii) the use of the parties commercially reasonable efforts to obtain any documentation from a Governmental Authority or a third party that may be necessary or helpful in connection with the foregoing.
(b) Provide Information. Except as set forth in Section 15, ConAgra and SpinCo shall keep each other reasonably informed with respect to any material development relating to the matters subject to this Agreement.
(c) Tax Attribute Matters . ConAgra and SpinCo shall promptly advise each other with respect to any proposed Tax adjustments that are the subject of an audit or investigation, or are the subject of any proceeding or litigation, and that may affect any Tax liability or any Tax Attribute (including, but not limited to, basis in an asset or the amount of earnings and profits) of any member of the LW Group or any member of the ConAgra Group, respectively.
(d) Confidentiality and Privileged Information . Any information or documents provided under this Agreement shall be kept confidential by the party receiving the information or documents, except as may otherwise be necessary in connection with the filing of required Tax Returns or in connection with any audit, proceeding, suit or action. Without limiting the foregoing (and notwithstanding any other provision of this Agreement or any other agreement), (i) no member of the ConAgra Group or LW Group, respectively, shall be required to provide any member of the LW Group or ConAgra Group, respectively, or any other Person access to or copies of any information or procedures other than information or procedures that relate solely to SpinCo, the business or assets of any member of the LW Group, or matters for which SpinCo or ConAgra Group, respectively, has an obligation to indemnify under this Agreement, and (ii) in no event shall any member of the ConAgra Group or the LW Group, respectively, be required to provide any member of the LW Group or ConAgra Group, respectively, or any other Person access to or copies of any information if such action could reasonably be expected to result in the waiver of any privilege. Notwithstanding the foregoing, in the event that ConAgra or SpinCo, respectively, determines that the provision of any information to any member of the LW Group or ConAgra Group, respectively, could be commercially detrimental or violate any law or
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agreement to which ConAgra or SpinCo, respectively, is bound, ConAgra or SpinCo, respectively, shall not be required to comply with the foregoing terms of this Section 14(d ) except to the extent that it is able, using commercially reasonable efforts, to do so while avoiding such harm or consequence (and shall promptly provide notice to ConAgra or SpinCo, to the extent such access to or copies of any information is provided to a Person other than a member of the ConAgra Group or LW Group (as applicable)).
SECTION 15. Audits and Contest .
(a) Notice . Each of ConAgra or SpinCo shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority that may affect the liability of any member of the LW Group or the ConAgra Group, respectively, for Taxes under Applicable Law or this Agreement; provided, that a partys right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying party is prejudiced by such failure
(b) ConAgra Control . Notwithstanding anything in this Agreement to the contrary but subject to Section 15(d), ConAgra shall have the right to control all matters relating to any Tax Return, or any Tax Proceeding, with respect to any Tax matters of a Combined Group or any member of a Combined Group (as such). ConAgra shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any Tax matter described in the preceding sentence; provided , however , that to the extent that any Tax Proceeding relating to such a Tax matter is reasonably likely to give rise to an indemnity obligation of SpinCo under Section 11 hereof, a) ConAgra shall keep SpinCo informed of all material developments and events relating to any such Tax Proceeding described in this proviso and b) at its own cost and expense, SpinCo shall have the right to participate in (but not to control) the defense of any such Tax Proceeding, provided that SpinCos rights with respect to any such Tax Proceeding occurring under CAP (a CAP Proceeding ) shall be limited to the information rights in clause (i) of the preceding proviso.
(c) SpinCo Assumption of Control; Non-Distribution Taxes . If ConAgra determines that the resolution of any matter pursuant to a Tax Proceeding (other than a Tax Proceeding relating to Distribution Taxes) is reasonably likely to have an adverse effect on the LW Group with respect to any Post-Distribution Period, ConAgra, in its sole discretion, may permit SpinCo to elect to assume control over disposition of such matter at SpinCos sole cost and expense; provided , however , that if SpinCo so elects, it will (i) be responsible for the payment of any liability arising from the disposition of such matter notwithstanding any other provision of this Agreement to the contrary and (ii) indemnify the ConAgra Group for any increase in a liability and any reduction of a Tax asset of the ConAgra Group arising from such matter.
(d) SpinCo Participation; Distribution Taxes . ConAgra shall have the right to control any Tax Proceeding relating to Distribution Taxes, provided that ConAgra shall keep SpinCo fully informed of all material developments and (i) if the Tax Proceeding is not a CAP Proceeding, shall permit SpinCo a reasonable opportunity to participate in the defense of the matter and (ii) if the Tax Proceeding is a CAP Proceeding, then (x) if such CAP Proceeding is reasonably likely to give rise to an indemnity obligation of SpinCo under Section 11 hereof, ConAgra shall permit SpinCo a reasonable opportunity to participate in the defense of the matter
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solely with respect to the portion of the CAP Proceeding that relates to Distribution Taxes, and (y) for any CAP Proceeding not described in clause (x), SpinCos right to participate in the defense of the matter shall be limited to the right to comment in advance on any written submissions with respect to Distribution Taxes.
SECTION 16 . Notices. All notices, requests, permissions, waivers and other communications hereunder will be in writing and will be deemed to have been duly given (a) when sent, if sent by telecopy, (b) when delivered, if delivered personally to the intended recipient and (c) one Business Day following sending by overnight delivery via an international courier service and, in each case, addressed to a Company at the following address for such Company,
if to ConAgra or the ConAgra Group, to:
ConAgra Foods, Inc.
222 W. Merchandise Mart Plaza, Suite 1300
Chicago, Illinois 60654
Attention: Colleen Batcheler
Email: Colleen.Batcheler@conagrafoods.com
with a copy (which shall not constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Attention: Neil Barr
Email: Neil.Barr@davispolk.com
if to SpinCo or the LW Group, to:
Lamb Weston Holdings, Inc.
599 S. Rivershore Lane
Eagle, Idaho 83616
Attention: Eryk Spytek
Email: Eryk.Spytek@conagrafoods.com
or to such other address(es) as may be furnished in writing by any such Company to the other Companies in accordance with the provisions of this Section 16 .
SECTION 17. Costs and Expenses . Except as expressly set forth in this Agreement, each party shall bear its own costs and expenses incurred pursuant to this Agreement. For purposes of this Agreement, costs and expenses shall include, but not be limited to, reasonable attorneys fees, accountants fees and other related professional fees and disbursements. For the avoidance of doubt, unless otherwise specifically provided in the Transaction Documents, all liabilities, costs and expenses incurred in connection with this Agreement by or on behalf of SpinCo or any member of the LW Group in any Pre-Distribution Period shall be the responsibility of ConAgra and shall be assumed in full by ConAgra.
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SECTION 18. Effectiveness; Termination and Survival . Except as expressly set forth in this Agreement, as between ConAgra and SpinCo, this Agreement shall become effective upon the consummation of the Distribution. All rights and obligations arising hereunder shall survive until they are fully effectuated or performed; provided that, notwithstanding anything in this Agreement to the contrary, this Agreement shall remain in effect and its provisions shall survive for one year after the full period of all applicable statutes of limitation (giving effect to any extension, waiver or mitigation thereof) and, with respect to any claim hereunder initiated prior to the end of such period, until such claim has been satisfied or otherwise resolved. This agreement shall terminate without any further action at any time before the Distribution upon termination of the Separation Agreement.
SECTION 19. Specific Performance . Each party hereto agrees that irreparable damage would occur if any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed that the parties hereto will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of the terms and provisions of this Agreement without proof of actual damages, this being in addition to any other remedy to which any such party is entitled at Law or in equity. Each party hereto further agrees that no other party or any other Person will be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 19 , and each party hereto irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
SECTION 20. Construction . The descriptive headings herein are inserted for convenience of reference only and are not intended to be a substantive part of or to affect the meaning or interpretation of this Agreement. Reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. References to any document, instrument or agreement (including this Agreement) includes and incorporates all exhibits, disclosure letters, schedules and other attachments thereto. Unless the context otherwise requires, any references to a Section or Schedule will be to a Section or Schedule to or of this Agreement. The use of the words include or including in this Agreement will be deemed to be followed by the words without limitation. The use of the word covenant will mean covenant and agreement. The use of the words or, either or any will not be exclusive. Days means calendar days unless specified as Business Days. References to statutes will include all regulations promulgated thereunder, and references to statutes or regulations will be construed to include all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation as of the date hereof. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Except as otherwise expressly provided elsewhere in this Agreement or any other Transaction Document, any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a party, such party may give or withhold such agreement, approval or consent, or exercise such right, in its sole and absolute discretion, the parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.
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SECTION 21. Entire Agreement; Amendments and Waivers .
(a) Entire Agreement .
(i) This Agreement and the other Transaction Documents, including any related annexes, schedules and exhibits, as well as any other agreements and documents referred to herein and therein, together constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all prior negotiations, agreements and understandings of the parties of any nature, whether oral or written, with respect to such subject matter. If there is a conflict between any provision of this Agreement and a provision of any other Transaction Document, the provision of this Agreement will control unless specifically provided otherwise in this Agreement.
(ii) THE PARTIES ACKNOWLEDGE AND AGREE THAT NO REPRESENTATION, WARRANTY, PROMISE, INDUCEMENT, UNDERSTANDING, COVENANT OR AGREEMENT HAS BEEN MADE OR RELIED UPON BY ANY PARTY OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE OTHER TRANSACTION DOCUMENTS. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMER SET FORTH IN THE PRECEDING SENTENCE, NEITHER CONAGRA NOR ANY OF ITS AFFILIATES HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES IN ANY PRESENTATION OR WRITTEN INFORMATION RELATING TO THE LW BUSINESS GIVEN OR TO BE GIVEN IN CONNECTION WITH THE CONTEMPLATED TRANSACTIONS OR IN ANY FILING MADE OR TO BE MADE BY OR ON BEHALF OF CONAGRA OR ANY OF ITS AFFILIATES WITH ANY GOVERNMENTAL AUTHORITY, AND NO STATEMENT MADE IN ANY SUCH PRESENTATION OR WRITTEN MATERIALS, MADE IN ANY SUCH FILING OR CONTAINED IN ANY SUCH OTHER INFORMATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE. SPINCO ACKNOWLEDGES THAT CONAGRA HAS INFORMED IT THAT NO PERSON HAS BEEN AUTHORIZED BY CONAGRA OR ANY OF ITS AFFILIATES TO MAKE ANY REPRESENTATION OR WARRANTY IN RESPECT OF THE LW BUSINESS OR IN CONNECTION WITH THE CONTEMPLATED TRANSACTIONS, UNLESS IN WRITING AND CONTAINED IN THIS AGREEMENT OR IN ANY OF THE OTHER TRANSACTION DOCUMENTS TO WHICH THEY ARE A PARTY.
(b) Amendments and Waivers .
(i) This Agreement may be amended, and any provision of this Agreement may be waived, if and only if such amendment or waiver, as the case may be, is in writing and signed, in the case of an amendment, by the parties or, in the case of a waiver, by the party against whom the waiver is to be effective.
(ii) No failure or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of
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any other right, power or privilege. Except as otherwise provided herein, no action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained in this Agreement. Any term, covenant or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but only by a written notice signed by such party expressly waiving such term, covenant or condition. The waiver by any party of a breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder.
SECTION 22. Governing Law and Interpretation . The validity, interpretation and enforcement of this Agreement will be governed by the Laws of the State of Delaware, without regard to the conflict of Laws provisions thereof that would cause the Laws of another state to apply.
SECTION 23. Dispute Resolution . In the event of any dispute relating to this Agreement, the parties shall work together in good faith to resolve such dispute within thirty (30) days. In the event that such dispute is not resolved, upon written notice by a party after such thirty (30)-day period, the matter shall be referred to a U.S. Tax counsel or other Tax advisor of recognized national standing (the Tax Arbiter ) that will be jointly chosen by the ConAgra and SpinCo; provided , however , that, if the ConAgra and SpinCo do not agree on the selection of the Tax Arbiter after five (5) days of good faith negotiation, the Tax Arbiter shall consist of a panel of three U.S. Tax counsel or other Tax advisor of recognized national standing with one member chosen by the ConAgra, one member chosen by SpinCo, and a third member chosen by mutual agreement of the other members within the following ten (10)-day period. Each decision of a panel Tax Arbiter shall be made by majority vote of the members. The Tax Arbiter may, in its discretion, obtain the services of any third party necessary to assist it in resolving the dispute. The Tax Arbiter shall furnish written notice to the parties to the dispute of its resolution of the dispute as soon as practicable, but in any event no later than ninety (90) days after acceptance of the matter for resolution. Any such resolution by the Tax Arbiter shall be binding on the parties, and the parties shall take, or cause to be taken, any action necessary to implement such resolution. All fees and expenses of the Tax Arbiter shall be shared equally by the parties to the dispute. If the parties are unable to find a Tax Arbiter willing to adjudicate the dispute in question and whom the parties, acting in good faith, find acceptable, then the dispute shall be resolved in the manner set forth in Article 5 of the Separation Agreement .
SECTION 24. Counterparts . This Agreement may be executed in multiple counterparts (any one of which need not contain the signatures of more than one party), each of which will be deemed to be an original but all of which taken together will constitute one and the same agreement. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or other electronic transmission, will be treated in all manner and respects as an original agreement and will be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any party hereto, the other parties hereto will re-execute original forms thereof and deliver them to the requesting party.
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SECTION 25. Successors and Assigns; Third Party Beneficiaries . Except as provided below, this Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns, by merger, acquisition of assets or otherwise (including but not limited to any successor of a party hereto succeeding to the Tax Attributes of such party under Applicable Tax Law). This Agreement is not intended to benefit any Person other than the parties hereto and such successors and assigns, and no such other Person shall be a third party beneficiary hereof. Upon the Distribution, this Agreement shall be binding on SpinCo and shall be subject to the obligations and restrictions imposed on SpinCo hereunder, including, without limitation, the indemnification obligations of SpinCo under Section 11.
SECTION 26. Authorization, Etc . Each of the parties hereto hereby represents and warrants that it has the power and authority to execute, deliver and perform this Agreement, that this Agreement has been duly authorized by all necessary corporate action on the part of such party, that this Agreement constitutes a legal, valid and binding obligation of each such party, and that the execution, delivery and performance of this Agreement by such party does not contravene or conflict with any provision or law or of its charter or bylaws or any agreement, instrument or order binding on such party.
SECTION 27. Change in Tax Law . Any reference to a provision of the Code, Treasury Regulations or any other Applicable Tax Law shall include a reference to any applicable successor provision of the Code, Treasury Regulations or other Applicable Tax Law.
SECTION 28. Principles . This Agreement is intended to calculate and allocate certain Tax liabilities of the members of the LW Group and the members of the ConAgra Group to SpinCo and ConAgra (and their respective Groups), and any situation or circumstance concerning such calculation and allocation that is not specifically contemplated by this Agreement shall be dealt with in a manner consistent with the underlying principles of calculation and allocation in this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day and year first written above.
ConAgra on its own behalf and on behalf of the members of the ConAgra Group | ||
By: |
/s/ Colleen R. Batcheler | |
Name: |
Colleen R. Batcheler | |
Title: |
Executive Vice President, General Counsel and Corporate Secretary |
SpinCo on its own behalf and on behalf of the members of the LW Group | ||
LAMB WESTON HOLDINGS, INC. | ||
By: |
/s/ Thomas P. Werner | |
Name: |
Thomas P. Werner | |
Title: |
President and Chief Executive Officer |
SCHEDULE A
The following transactions occurring pursuant to the Internal Restructuring are hereby identified as being free from Tax to the extent set forth herein (the Internal Tax-Free Transactions ), any:
(A) the filing of elections under Treas. Reg. Sec. 301.7701-3 to treat the applicable entities as disregarded from their owners for U.S. federal income tax purposes in transactions intended to qualify as distributions of property in complete liquidation of a corporation pursuant to Section 332 of the Code;
(B) transfers to existing and newly-formed entities intended to qualify as transfers pursuant to Section 351 of the Code;
(C) a transfer and distribution, taken together, intended to qualify as a reorganization described in Section 368(a)(1)(D) of the Code;
(D) distributions intended to qualify as the distribution of the controlled corporation stock to the shareholders of the distributing corporation pursuant to Section 355 of the Code; and
(E) a transfer intended to qualify as a reorganization described in Section 368(a)(1)(F) of the Code.
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SCHEDULE A
Existing GRAs means:
(i) the gain recognition agreement, in regards to Lamb Weston Netherlands BV, to be filed with ConAgra Foods, Inc. fiscal year 2017 federal income tax return upon the contribution by ConAgra Foods, Inc., to Lamb Weston International BV of 100% of the shares of Lamb Weston Netherlands BV and
(ii) the gain recognition agreement, in regards to ConAgra Foods Japan KK, filed with ConAgra Foods, Inc. fiscal year 2017 federal income tax return upon the contribution by ConAgra Foods, Inc. to Lamb Weston International BV of 100% of the shares of ConAgra Foods Japan KK.
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Exhibit 10.2
EMPLOYEE MATTERS AGREEMENT
between
CONAGRA FOODS, INC.
and
LAMB WESTON HOLDINGS, INC.
Dated as of November 8, 2016
ARTICLE I DEFINITIONS | 1 | |||||||
Section 1.1 | Certain Defined Terms. | 1 | ||||||
Section 1.2 | Other Capitalized Terms. | 8 | ||||||
ARTICLE II GENERAL PRINCIPLES; EMPLOYEE TRANSFERS | 8 | |||||||
Section 2.1 | ConAgra Group Employee Liabilities. | 8 | ||||||
Section 2.2 | LW Group Employee Liabilities. | 9 | ||||||
Section 2.3 | ConAgra Plans/LW Plans. | 9 | ||||||
Section 2.4 | Employee Transfers. | 9 | ||||||
Section 2.5 | Collective Bargaining Agreements. | 10 | ||||||
ARTICLE III NON-U.S. EMPLOYEE TRANSFERS AND BENEFIT PLANS | 10 | |||||||
Section 3.1 | Non-U.S. Plans. | 10 | ||||||
Section 3.2 | Non-U.S. Employees. | 10 | ||||||
ARTICLE IV SERVICE CREDIT | 11 | |||||||
Section 4.1 | Service Credit for Employee Transfers. | 11 | ||||||
ARTICLE V LITIGATION AND COMPENSATION | 12 | |||||||
Section 5.1 | Employee-Related Litigation. | 12 | ||||||
Section 5.2 | Paid Leave. | 12 | ||||||
Section 5.3 | Annual Cash Incentives. | 12 | ||||||
Section 5.4 | Employment Agreements. | 12 | ||||||
ARTICLE VI CERTAIN WELFARE BENEFIT PLAN MATTERS | 13 | |||||||
Section 6.1 | LW Spinoff Welfare Plans. | 13 | ||||||
Section 6.2 | Continuation of Elections. | 14 | ||||||
Section 6.3 | Deductibles and Preexisting Conditions. | 14 | ||||||
Section 6.4 | Workers Compensation. | 14 | ||||||
Section 6.5 | COBRA. | 15 | ||||||
ARTICLE VII TAX-QUALIFIED DEFINED BENEFIT PLANS | 15 | |||||||
Section 7.1 | U.S. Pension Plans. | 15 | ||||||
Section 7.2 | Continuation of Elections. | 16 | ||||||
Section 7.3 | Multiemployer Plan. | 16 | ||||||
ARTICLE VIII U.S. TAX-QUALIFIED DEFINED CONTRIBUTION PLANS | 17 | |||||||
Section 8.1 | U.S. Savings Plans. | 17 | ||||||
Section 8.2 | Continuation of Elections. | 18 | ||||||
Section 8.3 | Contributions Due. | 19 |
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ARTICLE IX NONQUALIFIED RETIREMENT PLANS | 19 | |||||||
Section 9.1 | LW Spinoff NQDC Plans. | 19 | ||||||
Section 9.2 | No Distributions on Separation | 20 | ||||||
Section 9.3 | Section 409A | 20 | ||||||
Section 9.4 | Continuation of Elections | 20 | ||||||
Section 9.5 | Delayed Transfer Employees | 20 | ||||||
ARTICLE X CONAGRA EQUITY AWARDS | 21 | |||||||
Section 10.1 | Outstanding ConAgra Equity Awards. | 21 | ||||||
Section 10.2 | Conformity with Non-U.S. Laws | 27 | ||||||
Section 10.3 | Tax Withholding and Reporting. | 27 | ||||||
Section 10.4 | Employment Treatment. | 27 | ||||||
Section 10.5 | Registration | 28 | ||||||
ARTICLE XI TRANSITION SERVICES, THIRD-PARTY CLAIMS | 28 | |||||||
Section 11.1 | General Principles | 28 | ||||||
Section 11.2 | Third-Party Claims | 28 | ||||||
ARTICLE XII INDEMNIFICATION | 28 | |||||||
Section 12.1 | Indemnification | 28 | ||||||
ARTICLE XIII COOPERATION | 29 | |||||||
Section 13.1 | Cooperation | 29 | ||||||
ARTICLE XIV MISCELLANEOUS | 29 | |||||||
Section 14.1 | Vendor Contracts | 29 | ||||||
Section 14.2 | Further Assurances | 29 | ||||||
Section 14.3 | Employment Taxes Withholding Reporting Responsibility | 30 | ||||||
Section 14.4 | Data Privacy | 30 | ||||||
Section 14.5 | Third Party Beneficiaries | 30 | ||||||
Section 14.6 | Effect if Distribution Does Not Occur | 30 | ||||||
Section 14.7 | Incorporation of Separation Agreement Provisions | 30 | ||||||
Section 14.8 | No Representation or Warranty | 31 |
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SCHEDULES AND EXHIBITS
Schedule 1.1 : LW Employee ConAgra Participants
Schedule 2.5 : Collective Bargaining Agreements
Schedule 5.3 : Annual Cash Incentive Exceptions
Schedule 5.4 : Employment Agreements Retained by ConAgra
Schedule 6.1(b) : ConAgra Welfare Plans
Schedule 7.1(a) : ConAgra Pension Plans
Schedule 8.1(a) : ConAgra 401(k) Plans
Schedule 9.1(a) : ConAgra NQDC Plan
Schedule 9.1(b) : NQDC Plan Transfer Exceptions
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EMPLOYEE MATTERS AGREEMENT
EMPLOYEE MATTERS AGREEMENT, dated as of November 8 , 2016 (this Employee Matters Agreement ), between ConAgra Foods, Inc., a Delaware corporation ( ConAgra ), and Lamb Weston Holdings, Inc., a Delaware corporation and a wholly owned Subsidiary of ConAgra ( SpinCo or Lamb Weston ).
RECITALS
A. The parties to this Employee Matters Agreement have entered into the Separation and Distribution Agreement (the Separation Agreement ), dated as of the date hereof, pursuant to which ConAgra intends to distribute to its stockholders, on a pro rata basis and without consideration, all the outstanding shares of common stock, par value $1.00 per share, of Lamb Weston then owned by ConAgra (the Distribution ).
B. The parties wish to set forth their agreements as to certain matters regarding the treatment of, and the compensation and employee benefits provided to, current and former employees of ConAgra and Lamb Weston and their Subsidiaries.
C. This Employee Matters Agreement incorporates by reference the agreement of the parties with regard to certain services to be performed by the parties following the Distribution, which agreement was originally set forth in the Transition Services Agreement, effective as of the date hereof.
AGREEMENT
In consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms . For the purposes of this Employee Matters Agreement:
162(m) Award means a ConAgra Performance Share Award that was intended to be qualified performance-based compensation within the meaning of Section 162(m) of the Code and the applicable regulations thereunder.
2008 Performance Share Plan means the ConAgra Foods, Inc. 2008 Performance Share Plan.
Adjusted ConAgra 2015-2017 162(m) Performance Share Award means a performance share award with respect to ConAgra Common Stock relating to ConAgra Performance Share Awards relating to fiscal years 2015-2017 that is a 162(m) Award held by ConAgra Participants described in Section 10.1(a)(iii)(A)(3) .
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Adjusted ConAgra 2015-2017 Non-162(m) Performance Share Award means a performance share award with respect to ConAgra Common Stock relating to ConAgra Performance Share Awards with a performance period relating to fiscal years 2015-2017 that is not a 162(m) Award held by ConAgra Participants described in Section 10.1(a)(iii)(A)(1) .
Adjusted ConAgra 2016-2018 Performance Share Award means a performance share award with respect to ConAgra Common Stock relating to ConAgra Performance Share Awards with a performance period relating to fiscal years 2016-2018 held by ConAgra Participants described in Section 10.1(a)(iii)(B) .
Adjusted ConAgra 2017-2019 Performance Share Award means a performance share award with respect to ConAgra Common Stock relating to ConAgra Performance Share Awards with a performance period relating to fiscal years 2017-2019 held by ConAgra Participants described in Section 10.1(a)(iii)(B) .
Adjusted ConAgra Equity Award means each Adjusted ConAgra Option, Adjusted ConAgra RSU, and Adjusted ConAgra Performance Share Award.
Adjusted ConAgra Options means an option to acquire ConAgra Common Stock relating to a ConAgra Option described in Section 10.1(a)(i)(A) .
Adjusted ConAgra Performance Share Awards means each Adjusted ConAgra 2015-2017 162(m) Performance Share Award, Adjusted ConAgra 2015-2017 Non-162(m) Performance Share Award, Adjusted ConAgra 2016-2018 Performance Share Award, and Adjusted ConAgra 2017-2019 Performance Share Award.
Adjusted ConAgra RSUs means a restricted stock unit award with respect to ConAgra Common Stock relating to ConAgra RSUs described in Section 10.1(a)(ii)(A) .
Applicable Transfer Date means the date on which a Delayed Transfer Employee actually commences employment with the ConAgra Group or the LW Group (as applicable).
Benefit Plan means, with respect to an entity, each plan, program, policy, agreement, arrangement or understanding that is maintained primarily for the benefit of employees in the United States and is a deferred compensation, executive compensation, incentive bonus or other bonus, pension, profit sharing, savings, retirement, severance pay, salary continuation, life, death benefit, health, hospitalization, sick leave, vacation pay, disability or accident insurance or other employee benefit plan, program, agreement or arrangement, including any employee benefit plan (as defined in Section 3(3) of ERISA) sponsored, maintained or contributed to by such entity or to which such entity is a party or under which such entity has any obligation; provided that no ConAgra Equity Award, nor any plan under which any such ConAgra Equity Award is granted, will constitute a Benefit Plan under this Employee Matters Agreement. In addition, no Employment Agreement will constitute a Benefit Plan for purposes hereof.
COBRA means the continuation coverage requirements under Code Section 4980B and ERISA Sections 601-608.
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Code means the Internal Revenue Code of 1986, as amended.
Collective Bargaining Agreement means any collective bargaining agreement, labor agreement, pension or other written agreement to which ConAgra, SpinCo, or any of their respective direct or indirect Subsidiaries is a party to.
ConAgra 401(k) Plans has the meaning set forth in Section 8.1(a) .
ConAgra Annual Incentive Plans has the meaning set forth in Section 5.3 .
ConAgra Director means each individual who is a non-employee member of the ConAgra Board and is not a member of the Board of Directors of SpinCo, in each case, as of the close of business on the Distribution Date.
ConAgra Employee means each individual who, as of the close of business on the Distribution Date, is employed by a member of the ConAgra Group (including, for the avoidance of doubt, any such individual who is on a leave of absence, whether paid or unpaid). ConAgra Employees also include ConAgra Transferees, effective as of the Applicable Transfer Date.
ConAgra Equity Award means each ConAgra Option, ConAgra RSU, and ConAgra Performance Share Award.
ConAgra Equity Plans means the ConAgra Foods 2006 Stock Plan, the ConAgra Foods 2009 Stock Plan, and the ConAgra Foods 2014 Stock Plan.
ConAgra Non-U.S. Plans means the Non-U.S. Plans sponsored or maintained by a member of the ConAgra Group.
ConAgra NQDC Plans has the meaning set forth in Section 9.1(a) .
ConAgra Options means an option to acquire shares of ConAgra Common Stock granted by ConAgra under a ConAgra Equity Plan prior to the Distribution Date.
ConAgra Participant means any ConAgra Employee, Former ConAgra Employee, Former LW Business Employee, or ConAgra Director who immediately prior to the Distribution holds ConAgra Equity Awards, or a beneficiary, dependent or alternate payee of such person and any LW Employee listed on Schedule 1.1 , or a beneficiary, dependent or alternate payee of such person.
ConAgra Pension Plans has the meaning set forth in Section 7.1(a) .
ConAgra Performance Share Awards means an award of performance shares with respect to shares of ConAgra Common Stock granted by ConAgra under a ConAgra Equity Plan prior to the Distribution Date.
ConAgra Plans means (i) the ConAgra Pension Plans, the ConAgra 401(k) Plans, the ConAgra Welfare Plans, and the ConAgra Retiree Welfare Plans, and (ii) any other Benefit Plan that, as of the close of business on the day before the Distribution Date, is sponsored or
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maintained solely by any member of the ConAgra Group. For the avoidance of doubt, no member of the ConAgra Group will be deemed to sponsor or maintain any Benefit Plan if its relationship to such Benefit Plan is solely to administer such Benefit Plan or provide to Lamb Weston any reimbursement in respect of such Benefit Plan.
ConAgra Retiree Welfare Plans has the meaning set forth in Section 6.1(a) .
ConAgra RSUs means a time-based restricted stock unit award granted by ConAgra under a ConAgra Equity Plan prior to the Distribution Date.
ConAgra Transferees means the Delayed Transfer Employees who transfer from the LW Group to the ConAgra Group.
ConAgra Welfare Plans has the meaning set forth in Section 6.1(b) .
Delayed Transfer Employee has the meaning set forth in Section 2.4(b) .
Distribution has the meaning set forth in the Recitals.
Employee Matters Agreement has the meaning set forth in the preamble.
Employment Agreement means any individual employment, retention, consulting, change in control, split dollar life insurance, sale bonus, incentive bonus, severance or other individual compensatory agreement between any current or former employee and ConAgra or any of its Affiliates.
EPS Goal has the meaning set forth in Section 10.1(a)(iii)(A)(3) .
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
Former ConAgra Employee means any individual who (i) on or before the close of business on the Distribution Date retired or otherwise separated from service from ConAgra and its Affiliates, and (ii) is not a Former LW Business Employee.
Former LW Business Employee means any individual (a) who on or before the Distribution Date retired or otherwise separated from service from the ConAgra Group or the LW Group, and (b) (i) who immediately before his or her retirement or other separation from service with the ConAgra Group or the LW Group was substantially dedicated to the LW Business, or (ii) whose last day worked with the ConAgra Group or the LW Group was with the LW Business or a LW Entity.
Hourly LW Employees has the meaning set forth in Section 7.1(b) .
Human Resources Committee means the Human Resources Committee of the Board of Directors of ConAgra.
Joint Withdrawal Liability has the meaning set forth in Section 7.3 .
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LW 2015-2017 Performance Share Award means a performance share award with respect to SpinCo Common Stock relating to ConAgra Performance Share Awards with a performance period relating to fiscal years 2015-2017 held by LW Participants described in Section 10.1(a)(iii)(A)(2) .
LW 2016-2018 Performance Share Award means a performance share award with respect to SpinCo Common Stock relating to ConAgra Performance Share Awards with a performance period relating to fiscal years 2016-2018 held by LW Participants described in Section 10.1(a)(iii)(C) .
LW 2017-2019 Performance Share Award means a performance share award with respect to SpinCo Common Stock relating to ConAgra Performance Share Awards with a performance period relating to fiscal years 2017-2019 held by LW Participants described in Section 10.1(a)(iii)(C) .
LW Annual Incentive Plans has the meaning set forth in Section 5.3 .
LW Contributions has the meaning set forth in Section 7.3 .
LW Director means each individual who, as of the close of business on the Distribution Date, is a non-employee member of the Board of Directors of SpinCo.
LW Employee means each individual who, as of the close of business on the Distribution Date, is employed by a LW Entity (including, for the avoidance of doubt, any such individual who is on a leave of absence, whether paid or unpaid). LW Employees also include LW Transferees, effective as of the Applicable Transfer Date.
LW Employment Agreement has the meaning set forth in Section 5.4 .
LW Equity Award means each LW Option, LW RSU, and LW Performance Share Award.
LW Equity Plans has the meaning set forth in Section 10.1(c) .
LW Non-U.S. Plan means any Non-U.S. Plan sponsored or maintained by a member of the LW Group.
LW Options means an option to acquire SpinCo Common Stock relating to a ConAgra Option granted by Lamb Weston as of the Distribution under a LW Equity Plan pursuant to Section 10.1(a)(i)(B) .
LW Participant means any LW Employee or LW Director (other than any LW Employee listed on Schedule 1.1 who is a ConAgra Participant) who immediately prior to the Distribution holds ConAgra Equity Awards, or a beneficiary, dependent or alternate payee of such person.
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LW Performance Share Awards means each LW 2015-2017 Performance Share Award, LW 2016-2018 Performance Share Award and LW 2017-2019 Performance Share Award.
LW Plans means (i) the LW Spinoff Pension Plans, the LW Spinoff 401(k) Plans, and the LW Spinoff Welfare Plans and (ii) any Benefit Plan sponsored or maintained by any member of the LW Group. For the avoidance of doubt, no member of the LW Group will be deemed to sponsor or maintain any Benefit Plan if its relationship to such Benefit Plan is solely to administer such Benefit Plan or provide to ConAgra any reimbursement in respect of such Benefit Plan.
LW Retirees has the meaning set forth in Section 6.1(a) .
LW RSUs means restricted stock unit award with respect to SpinCo Common Stock granted by Lamb Weston as described in Section 10.1(a)(ii)(B) .
LW Share has the meaning set forth in Section 7.3 .
LW Share Price means the average of the volume weighted average price per share of SpinCo Common Stock on the NYSE (as traded on the regular way market), calculated to four decimal places (as reported by Bloomberg L.P. or any successor thereto) and determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours, on each of the five consecutive trading days starting with the first full trading date immediately following the Distribution Date.
LW Spinoff 401(k) Plan has the meaning set forth in Section 8.1(a) .
LW Spinoff NQDC Plans has the meaning set forth in Section 9.1(a) .
LW Spinoff Pension Plan has the meaning set forth in Section 7.1(b) .
LW Spinoff Welfare Plans has the meaning set forth in Section 6.1(b) .
LW Transferees means the Delayed Transfer Employees who transfer from the ConAgra Group to the LW Group.
LW Welfare Claims has the meaning set forth in Section 6.1(c) .
Measurement Date has the meaning set forth in Section 10.1(a)(iii)(A)(4) .
Multiemployer Plan has the meaning set forth in Section 7.3 .
Non-U.S. Delayed Transfer Employee has the meaning set forth in Section 2.4(b) .
Non-U.S. LW Employee means each LW Employee whose employment is based outside of the United States. Non-U.S. LW Employees also include Non-U.S. Delayed Transfer Employee who are LW Transferees, effective as of the Applicable Transfer Date.
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Non-U.S. Plan means, with respect to an entity, each plan, program, policy, agreement, arrangement or understanding that is maintained primarily for the benefit of employees outside of the United States and is a deferred compensation, executive compensation, incentive bonus or other bonus, pension, profit sharing, savings, retirement, severance pay, salary continuation, life, death benefit, health, hospitalization, sick leave, vacation pay, disability or accident insurance or other employee benefit plan, program, agreement or arrangement, sponsored, maintained or contributed to by such entity or to which such entity is a party or under which such entity has any obligation; provided that no ConAgra Equity Award, nor any plan under which any such ConAgra Equity Award is granted, will constitute a Non-U.S. Plan under this Employee Matters Agreement. In addition, no Employment Agreement will constitute a Non-U.S. Plan for purposes hereof.
NYSE means the New York Stock Exchange.
Option Exercise Price means the pre-adjustment exercise price of the applicable ConAgra Option.
Plan Payee means, as to an individual who participates in a Benefit Plan, such individuals dependents, beneficiaries, alternate payees and alternate recipients, as applicable under such Benefit Plans.
Post-Distribution ConAgra Share Price means the average of the volume weighted average price per share of ConAgra Common Stock on NYSE (as traded on the regular way market), calculated to four decimal places (as reported by Bloomberg L.P. or any successor thereto) and determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours, on each of the five consecutive trading days starting with the first full trading date immediately following the Distribution Date.
Pre-Distribution Action means a Third-Party Claim with respect to a ConAgra Employee, Former ConAgra Employee, LW Employee, or Former LW Business Employee that arises from an act, omission, or event that occurred prior to the Distribution.
Pre-Distribution ConAgra Share Price means the average of the volume weighted average price per share of ConAgra Common Stock on NYSE (as traded on the regular way market), calculated to four decimal places (as reported by Bloomberg L.P. or any successor thereto) and determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours, on each of the five consecutive trading days ending with the second complete trading day immediately prior to the Distribution Date.
Separation Agreement has the meaning set forth in the Recitals.
Transferred Leave has the meaning set forth in Section 5.2 .
Vendor Contract has the meaning set forth in Section 14.1 .
Welfare Plan means each Benefit Plan that provides life insurance, health care, dental care, vision care, employee assistance programs (EAP), accidental death and dismemberment insurance, disability, severance, vacation, dependent care reimbursements, or other group welfare or fringe benefits or is otherwise an employee welfare benefit plan as described in Section 3(1) of ERISA.
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Section 1.2 Other Capitalized Terms . Capitalized terms not defined in this Employee Matters Agreement, including the following, will have the meanings ascribed to them in the Separation Agreement:
| Action |
| Affiliate |
| ConAgra Board |
| ConAgra Common Stock |
| ConAgra Group |
| Distribution Date |
| Excluded Liabilities |
| Governmental Authority |
| Joint Venture Interests |
| Law |
| Liability |
| LW Business |
| LW Entities |
| LW Group |
| LW Joint Ventures |
| LW Liabilities |
| Person |
| SpinCo Common Stock |
| Subsidiary |
| Tax |
| Tax Sharing Agreement |
| Third-Party Claim |
| Transaction Documents |
| Transition Services Agreement |
ARTICLE II
GENERAL PRINCIPLES; EMPLOYEE TRANSFERS
Section 2.1 ConAgra Group Employee Liabilities . Except as specifically provided in this Employee Matters Agreement, the ConAgra Group will be solely responsible for (a) all employment, compensation and employee benefits Liabilities relating to ConAgra Employees and Former ConAgra Employees, (b) all Liabilities arising under each ConAgra Plan, and (c) any other Liabilities expressly assigned or allocated to a member of the ConAgra Group under this Employee Matters Agreement.
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Section 2.2 LW Group Employee Liabilities . Except as specifically provided in this Employee Matters Agreement, the LW Group will be solely responsible for (a) all employment, compensation and employee benefits Liabilities relating to LW Employees and Former LW Business Employees, (b) all Liabilities arising under each LW Plan, and (c) any other Liabilities expressly assigned or allocated to a member of the LW Group under this Employee Matters Agreement.
Section 2.3 ConAgra Plans/LW Plans .
(a) Except as otherwise provided herein or in the Transition Services Agreement, effective as of the Distribution Date, the ConAgra Group will be exclusively responsible for administering each ConAgra Plan and ConAgra Non-U.S. Plan in accordance with its terms and for all obligations and Liabilities with respect to, and all benefits owed to participants in, the ConAgra Plans and the ConAgra Non-U.S. Plans, whether arising before, on or after the Distribution Date.
(b) Except as otherwise provided herein or in the Transition Services Agreement, effective as of the Distribution Date the LW Group will be exclusively responsible for administering each LW Plan and LW Non-U.S. Plan in accordance with its terms and for all obligations and Liabilities with respect to, and all benefits owed to participants in, the LW Plans and the LW Non-U.S. Plans, whether arising before, on or after the Distribution Date.
Section 2.4 Employee Transfers .
(a) Except with respect to Delayed Transfer Employees, ConAgra will or will cause employees of the ConAgra Group who are designated by ConAgra to transfer employment to Lamb Weston or the appropriate member of the LW Group prior to the Distribution Date.
(b) The following employees will be Delayed Transfer Employees for purposes of this Employee Matters Agreement: (i) upon mutual agreement of ConAgra and Lamb Weston, any employee whose employment transfers within six months after the Distribution Date from the ConAgra Group to the LW Group or from the LW Group to the ConAgra Group because such employee was inadvertently and erroneously treated as employed by the wrong employer on the Distribution Date and who was continuously employed by a member of the ConAgra Group or the LW Group (as applicable) from the Distribution Date through the date such employee commences employment with a member of the ConAgra Group or LW Group (as applicable) and (ii) any employee identified by ConAgra prior to the Distribution Date whose employment transfers within six months after the Distribution Date from the ConAgra Group to the LW Group or from the LW Group to the ConAgra Group because such employees transfer prior to the Distribution Date could not be completed (such employees described in clause (ii) also Non-U.S. Delayed Transfer Employees ); provided , however , that no employee of either Group who is covered by a Collective Bargaining Agreement at the time such employee transfers to the other Group will be a Delayed Transfer Employee. Notwithstanding anything herein to the contrary, no employee will be considered a Delayed Transfer Employee unless the Applicable Transfer Date of any Delayed Transfer Employee occurs on or before the date that is six months after the Distribution Date.
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Section 2.5 Collective Bargaining Agreements . Effective as of the Distribution Date, (i) ConAgra or a member of the ConAgra Group will retain each Collective Bargaining Agreement then in effect covering any ConAgra Employee and will retain all liabilities arising prior to the Distribution Date and assume all liabilities arising after the Distribution Date under each such Collective Bargaining Agreement and (ii) Lamb Weston or a member of the LW Group will retain or assume each Collective Bargaining Agreement then in effect covering any LW Employee including, but not limited to, the Collective Bargaining Agreements set forth on Schedule 2.5 and will retain all liabilities arising prior to the Distribution Date and assume all liabilities arising after the Distribution Date under each such Collective Bargaining Agreement.
ARTICLE III
NON-U.S. EMPLOYEE TRANSFERS AND BENEFIT PLANS
Section 3.1 Non-U.S. Plans . Except as otherwise provided in the Transition Services Agreement, effective as of the Distribution Date, (i) ConAgra or a member of the ConAgra Group will retain each ConAgra Non-U.S. Plan and (ii) Lamb Weston or a member of the LW Group will retain or assume each LW Non-U.S. Plan. To the extent that the applicable Law of any jurisdiction requires that all or a portion of any ConAgra Non-U.S. Plan be assumed or retained by a member of the LW Group in connection with the transactions contemplated by this Employee Matters Agreement, the Separation Agreement or the other Transaction Documents, Lamb Weston will cause the LW Group to assume or retain such ConAgra Non-U.S. Plans.
Section 3.2 Non-U.S. Employees . Notwithstanding anything to the contrary contained in this Employee Matters Agreement, except as otherwise provided in the Transition Services Agreement, any employee who is employed by a member of the ConAgra Group in a non-US jurisdiction immediately prior to the Distribution, and who is required by applicable Law to transfer to a member of the LW Group in connection with the transactions contemplated by this Employee Matters Agreement, the Separation Agreement or the other Transaction Documents, will transfer automatically on the Distribution Date to SpinCo or a member of the LW Group in accordance with such applicable Law and will be deemed to be a LW Employee and a Non-U.S. LW Employee for purposes of this Employee Matters Agreement. Notwithstanding anything to the contrary herein, the following terms will apply to all Non-U.S. LW Employees:
(a) To the extent that (i) the applicable Law of any jurisdiction, (ii) any applicable Collective Bargaining Agreement or other applicable agreement with a works council or economic committee, or (iii) any applicable employment agreement would require SpinCo or its Affiliates (including a member of the LW Group) to provide any terms of employment to any Non-U.S. LW Employee that are more favorable than those otherwise provided for in this Employee Matters Agreement in connection with the Distribution of the LW Business to SpinCo, then SpinCo will cause the LW Group to
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provide such Non-U.S. LW Employee with such more favorable terms. SpinCo will be responsible for liabilities for, and will cause the LW Group to provide all compensation or benefits (whether statutory, contractual or otherwise) to each Non-U.S. LW Employee arising from or related to the transactions contemplated by this Employee Matters Agreement, the Separation Agreement, or the other Transaction Documents, or the related transfer of the employee to SpinCo or a member of the LW Group.
(b) ConAgra and SpinCo agree that to the extent provided under the applicable Laws of certain foreign jurisdictions, (i) any employment agreements between ConAgra and its Affiliates, on the one hand, and any Non-U.S. LW Employee, on the other hand, and (ii) any Collective Bargaining Agreements applicable to the Non-U.S. LW Employees in such jurisdictions, will in each case have effect after the Distribution as if originally made between the LW Group and the other parties to such employment agreement or Collective Bargaining Agreement.
ARTICLE IV
SERVICE CREDIT
Section 4.1 Service Credit for Employee Transfers . Subject to the terms of any applicable Collective Bargaining Agreement, the Benefit Plans will provide the following service crediting rules effective as of the Distribution Date:
(a) From and after the Distribution Date Lamb Weston will, and will cause its Affiliates (including the members of the LW Group) and successors to, provide credit under the LW Plans to each LW Employee for service with the ConAgra Group (including, prior to the Distribution, the LW Group) prior to the Distribution Date for purposes of eligibility, vesting, and benefit accrual under the appropriate LW Plans in which the LW Employee is otherwise eligible, subject to the terms of those plans; provided , however , that service will not be recognized to the extent that such recognition would result in the duplication of benefits taking into account both the ConAgra Plans and the LW Plans.
(b) A Delayed Transfer Employees service with the ConAgra Group or the LW Group (as applicable) following the Distribution will be recognized for purposes of eligibility, vesting and benefit accrual under the appropriate ConAgra Plans or LW Plans as appropriate in which they are otherwise eligible, subject to the terms of those plans; provided , however , that service will not be recognized to the extent that such recognition would result in the duplication of benefits taking into account both the ConAgra Plans and the LW Plans.
(c) Except as provided in Section 4.1(b) , with respect to an employee hired by the ConAgra Group or the LW Group after the Distribution Date, the Benefit Plans of the ConAgra Group for employees hired by the ConAgra Group or the LW Group for employees hired by the LW Group will not recognize such employees service with the LW Group for employees hired by the ConAgra Group or the ConAgra Group for employees hired by the LW Group unless required by Law or an applicable Collective Bargaining Agreement.
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ARTICLE V
LITIGATION AND COMPENSATION
Section 5.1 Employee-Related Litigation . Notwithstanding any provision of this Employee Matters Agreement to the contrary, Liability with respect to any Pre-Distribution Action: (a) will be a LW Liability under the Separation Agreement to the extent asserted by, or arising from or relating primarily to the employment of, LW Employee(s) and/or Former LW Business Employee(s); and (b) will be an Excluded Liability under the Separation Agreement to the extent asserted by, or arising from or relating primarily to the employment of, ConAgra Employee(s) and/or Former ConAgra Employee(s). For the avoidance of doubt, a Pre-Distribution Action will be subject to Article IV of the Separation Agreement.
Section 5.2 Paid Leave . Subject to the terms of any applicable Collective Bargaining Agreement and except to the extent not permitted by applicable Law, ConAgra and SpinCo will cause the LW Group to credit each LW Employee with the amount of accrued and unpaid hours of paid leave, which may include, but is not limited to, vacation, personal days, occasional days, floating holidays and sick leave (together, the Transferred Leave ) applicable to such LW Employee as of the Distribution Date, or the Applicable Transfer Date. Subject to the terms of any applicable Collective Bargaining Agreement and except to the extent not permitted by applicable Law, the ConAgra Group will retain responsibility for accrued but unpaid hours of paid leave, which may include, but is not limited to, vacation, personal days, occasional days, floating holidays and sick leave attributable to ConAgra Employees as of the Distribution Date, or the Applicable Transfer Date. Notwithstanding the foregoing, in any jurisdiction where payment of the value of accrued but unused paid leave to LW Employees is required by applicable Law as of the Distribution Date (a) ConAgra will pay, or cause to be paid, all Transferred Leave as soon as reasonably practicable after the Distribution Date and (b) Lamb Weston will promptly, but in no event more than 30 days after being notified by ConAgra, reimburse ConAgra in respect of such payment.
Section 5.3 Annual Cash Incentives . The ConAgra Group maintains annual incentive plans for eligible employees of the ConAgra Group (such plans, the ConAgra Annual Incentive Plans ), and the LW Group maintains annual incentive plans for eligible employees of the LW Group (such plans, the LW Annual Incentive Plans ). The ConAgra Group will be responsible for any payments owed under the ConAgra Annual Incentive Plans and the LW Group will be responsible for any payments owed under the LW Annual Incentive Plans, provided that, except as set forth on Schedule 5.3 , if any LW Employees or Former LW Business Employees are owed amounts under the ConAgra Annual Incentive Plan for fiscal year 2017, the LW Group will pay and be responsible for such payments and if any ConAgra Employees or Former ConAgra Employees are owed amounts under the LW Annual Incentive Plans for fiscal year 2017, the ConAgra Group will pay and be responsible for such payments.
Section 5.4 Employment Agreements . Effective as of the Distribution, Lamb Weston or a member of the LW Group will assume and be solely responsible for any Employment Agreement to which a LW Employee or a Former LW Business Employee is
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a party other than the agreements set forth on Schedule 5.4 (each, a LW Employment Agreement ) and the ConAgra Group will have no liabilities with respect thereto. Notwithstanding any provision to the contrary, (a) the LW Employment Agreements will be the responsibility of one or more members of the LW Group following the Distribution Date; and (b) ConAgra will retain and be solely and exclusively responsible for all obligations and liabilities with respect to, or in any way related to, any Employment Agreement that is not a LW Employment Agreement.
ARTICLE VI
CERTAIN WELFARE BENEFIT PLAN MATTERS
Section 6.1 LW Spinoff Welfare Plans .
(a) The ConAgra Group and the ConAgra Plans that are Welfare Plans providing retiree medical benefits to Former LW Business Employees and Former ConAgra Employees (such plans, the ConAgra Retiree Welfare Plans ) will retain responsibility for providing retiree medical benefits to Former LW Business Employees who, as of the Distribution Date, are enrolled in the retiree medical benefits of the ConAgra Retiree Welfare Plans or are eligible and have elected to participate in the retiree medical benefits of the ConAgra Retiree Welfare Plans ( LW Retirees ), and the ConAgra Group and ConAgra Retiree Welfare Plans will remain responsible for all claims incurred by such LW Retirees under the ConAgra Retiree Welfare Plans (whether incurred before, on, or after the Distribution Date). The ConAgra Group and the ConAgra Retiree Welfare Plans will retain responsibility for providing the applicable benefits under the ConAgra Retiree Welfare Plans to Former ConAgra Employees and ConAgra Employees.
(b) Except as otherwise provided in the Transition Services Agreement, effective not later than the Distribution Date, Lamb Weston or a member of the LW Group will establish certain plans that are group health or welfare benefit plans (such plans, the LW Spinoff Welfare Plans ), which have terms and features (including benefit coverage options, employer contribution provisions, but excluding retiree medical benefits) that are substantially similar to the corresponding ConAgra Plans listed on Schedule 6.1(b) , (such ConAgra Plans, the ConAgra Welfare Plans ) such that (for the avoidance of doubt) each ConAgra Welfare Plan is substantially replicated by a corresponding LW Spinoff Welfare Plan. Except as set forth in the Transition Services Agreement, from and after the Distribution Date or Applicable Transfer Date, Lamb Weston will cause each LW Spinoff Welfare Plan to cover those LW Employees and their Plan Payees who immediately prior to the Distribution Date or Applicable Transfer Date were participating in, or entitled to present or future benefits under, the corresponding ConAgra Welfare Plan.
(c) Except as otherwise provided in the Transition Services Agreement and Section 6.1(a) , the LW Group and the LW Spinoff Welfare Plans will be solely responsible for all claims incurred by LW Employees, Former LW Business Employees and their Plan Payees under the LW Spinoff Welfare Plans and ConAgra Welfare Plans ( LW Welfare Claims ) before, on and after the Distribution Date or Applicable Transfer
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Date, but only to the extent such claims are not otherwise payable under an insurance policy held by the ConAgra Group. To the extent any LW Welfare Claims are payable under an insurance policy held by the ConAgra Group, ConAgra will take all commercially reasonable actions necessary to process such claim and obtain payment under the applicable insurance policy. Effective as of the Distribution Date or Applicable Transfer Date, ConAgra will cause LW Employees and their Plan Payees to cease to be covered by the ConAgra Welfare Plans, except as otherwise provided in the Transition Services Agreement. The ConAgra Group and the ConAgra Welfare Plans will remain solely responsible for all claims incurred by ConAgra Employees, Former ConAgra Employees and their Plan Payees, whether incurred before, on, or after the Distribution Date.
(d) For purposes of this Section 6.1 , a claim will be deemed incurred on the date that the event that gives rise to the claim occurs (for purposes of life insurance, severance, sickness, accident and disability programs) or on the date that treatment or services are provided (for purposes of health care programs).
Section 6.2 Continuation of Elections . Except as otherwise provided in the Transition Services Agreement, as of the Distribution Date, or Applicable Transfer Date, Lamb Weston will cause the LW Spinoff Welfare Plans to recognize elections and designations (including, without limitation, all coverage and contribution elections and beneficiary designations, all continuation coverage and conversion elections, and all qualified medical child support orders and other orders issued by courts of competent jurisdiction) in effect with respect to the LW Employees and Former LW Business Employees prior to the effective date of the LW Spinoff Welfare Plans or, if later, the Applicable Transfer Date, under the corresponding ConAgra Welfare Plans, to the extent such elections and designations and orders are applicable to such LW Spinoff Welfare Plan, and apply and maintain in force comparable elections and designations and orders under the LW Spinoff Welfare Plans for the remainder of the period or periods for which such elections or designations are by their original terms effective.
Section 6.3 Deductibles and Preexisting Conditions . Except as otherwise provided in the Transition Services Agreement, as of the Distribution Date, or Applicable Transfer Date, Lamb Weston will cause the LW Spinoff Welfare Plans to recognize all amounts applied to deductibles, co-payments and out-of-pocket maximums with respect to LW Employees under the corresponding ConAgra Welfare Plan during the plan year in which the effective date of the LW Spinoff Welfare Plans occurs or, if later, the Applicable Transfer Date occurs, and the LW Spinoff Welfare Plans will not impose any limitations on coverage for preexisting conditions other than such limitations as were applicable under the corresponding ConAgra Welfare Plan prior to the effective date of the LW Spinoff Welfare Plans or, if later, the Applicable Transfer Date.
Section 6.4 Workers Compensation . The LW Group will be solely responsible (or cause the applicable member of the LW Group to assume and be solely responsible) for all claims for workers compensation benefits and will assume any related workers compensation Liabilities, in each case, with respect to each LW Employee and Former LW Business Employee whether arising before, at or after the Distribution; provided ,
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however , that if applicable Law does not permit the LW Group to provide such benefits with respect to injuries or illnesses that arose prior to the Distribution Date, ConAgra will be responsible for providing such benefits and Lamb Weston will promptly, but in no event more than 30 days after being notified by ConAgra, reimburse ConAgra in respect of any such benefits provided and indemnify ConAgra and its Affiliates for all Liabilities incurred in connection with the administration of such benefits. The ConAgra Group will be solely responsible for all workers compensation benefits with respect to ConAgra Employees and Former ConAgra Employees, regardless of when such claims arose.
Section 6.5 COBRA . Except as otherwise provided in the Transition Services Agreement, effective as of the Distribution Date or Applicable Transfer Date, Lamb Weston or a member of the LW Group will assume or will cause the LW Spinoff Welfare Plans to assume sole responsibility for compliance with COBRA after the Distribution Date or Applicable Transfer Date for all LW Employees, Former LW Business Employees (other than LW Retirees) and their qualified beneficiaries for whom a qualifying event occurs before, on or after the Distribution Date or the Applicable Transfer Date; provided , however , that ConAgra or a member of the ConAgra Group will be responsible for furnishing any election notice required under COBRA to any LW Transferee. ConAgra, the ConAgra Group, or a ConAgra Welfare Plan will remain solely responsible for compliance with COBRA before, on and after the Distribution Date or Applicable Transfer Date for all ConAgra Employees, Former ConAgra Employees, LW Retirees and their qualified beneficiaries; provided , however , that Lamb Weston or a member of the LW Group will be responsible for furnishing any election notice required under COBRA to any ConAgra Transferee. The terms qualified beneficiaries and qualifying event will have the meanings given to them under Code Section 4980B and ERISA Sections 601-608. For the avoidance of doubt, Section 6.1 will govern whether the LW Spinoff Welfare Plans or ConAgra Welfare Plans are responsible for claims incurred by LW Employees, Former LW Business Employees or their qualified beneficiaries, while receiving continuation coverage under COBRA.
ARTICLE VII
TAX-QUALIFIED DEFINED BENEFIT PLANS
Section 7.1 U.S. Pension Plans .
(a) From and after the Distribution Date, ConAgra and the ConAgra Group will retain all assets and Liabilities under the Benefit Plans that are defined benefit plans listed on Schedule 7.1(a) (the ConAgra Pension Plans ). Effective as of the Distribution Date, each LW Employee will cease active participation in, and each LW Employees service and benefit accruals will cease accruing under, the ConAgra Pension Plans.
(b) Effective as of the Distribution Date, the LW Group has established and adopted a defined benefit plan that is intended to qualify under Code Section 401(a), along with a related master trust that is exempt under Code Section 501(a) (such plan and trust, collectively, the LW Spinoff Pension Plan ) under which each LW Employee who is a production-based employee and paid on an hourly basis (whether or
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not covered by one or more of the Collective Bargaining Agreements, but excluding corporate support staff who are paid on an hourly basis) (the Hourly LW Employees ) will (i) receive credit for his or her service with any member of the ConAgra Group and any of their respective predecessors and (ii) will be provided benefits and other terms and conditions regarding vesting, eligibility to participate, and receipt of benefits that are the same as those contained in the applicable ConAgra Pension Plans such that, in each case, (x) the benefit received by each such Hourly LW Employee covered by a Collective Bargaining Agreement will be no less favorable than the benefit required to be provided to such Hourly LW Employee under the terms of such Collective Bargaining Agreement and (y) the benefit received by each such Hourly LW Employee, when added together with the benefit received by such Hourly LW Employee under the applicable ConAgra Pension Plan, will be no less favorable than the benefit such Hourly LW Employee would have become entitled to receive under the terms of the applicable ConAgra Pension Plan had such Hourly LW Employee remained employed by a member of the ConAgra Group and received his or her entire pension benefit under the applicable ConAgra Pension Plan as in effect on the Distribution Date. Except as set forth in the Transition Services Agreement, Lamb Weston or a member of the LW Group is solely responsible for taking all necessary, reasonable, and appropriate actions (including the submission of the LW Spinoff Pension Plan to the Internal Revenue Service for a determination of tax-qualified status) to establish, maintain and administer the LW Spinoff Pension Plan so that it is qualified under Section 401(a) of the Code and that the related trust thereunder is exempt under Section 501(a) of the Code.
(c) From and after the Distribution Date, ConAgra and the members of the ConAgra Group are solely and exclusively responsible for all obligations and liabilities with respect to, or in any way related to, the ConAgra Pension Plans, whether accrued before, on or after the Distribution Date and Lamb Weston and the members of the LW Group will be solely and exclusively responsible for all obligations and liabilities with respect to, or in any way related to, the LW Spinoff Pension Plan. Nothing in this Employee Matters Agreement prohibits the ConAgra Group or the LW Group from amending or terminating the ConAgra Pension Plans or the LW Spinoff Pension Plans, respectively, at any time. The LW Group may change or discontinue the benefits described in Section 7.1(b) at any time after the Distribution Date, subject to their collective bargaining obligations.
Section 7.2 Continuation of Elections . As of the Distribution Date, Lamb Weston (acting directly or through a member of the LW Group) will cause the LW Spinoff Pension Plan to recognize and maintain all existing elections, including beneficiary designations, payment form elections and rights of alternate payees under qualified domestic relations orders with respect to the Hourly LW Employees and their respective Plan Payees under the corresponding ConAgra Pension Plan.
Section 7.3 Multiemployer Plan . If any member of the ConAgra Group incurs liability due to a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from The Western Conference of Teamsters Pension Plan (the Multiemployer Plan ) and such withdrawal liability assessed against any member of the ConAgra Group by the Multiemployer Plan (such aggregate withdrawal liability, the Joint
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Withdrawal Liability ) is calculated (in full or in part) using contributions made to the Multiemployer Plan on behalf of hours worked by LW Employees or Former LW Business Employees ( LW Contributions ), the LW Group will be responsible for and liable for the LW Share of such Joint Withdrawal Liability. The LW Share shall mean the Joint Withdrawal Liability multiplied by a fraction, (a) the numerator of which is the LW Contributions used to calculate the Joint Withdrawal Liability and (b) the denominator of which is the total contributions to the Multiemployer Plan used to calculate the Joint Withdrawal Liability. For the avoidance of doubt, the LW Share will be a LW Liability. If the Joint Withdrawal Liability is determined using the direct attribution method under Section 4211(c)(4) of ERISA, then this Section 7.3 will be applied by (i) replacing each reference to the contributions made to the Multiemployer Plan on behalf of hours worked by with the unfunded vested benefits attributable to and (ii) replacing each reference to total contributions to the Multiemployer Plan with total unfunded vested benefits.
ARTICLE VIII
U.S. TAX-QUALIFIED DEFINED CONTRIBUTION PLANS
Section 8.1 U.S. Savings Plans .
(a) Except as otherwise provided in the Transition Services Agreement, effective as of the Distribution Date, Lamb Weston or another member of the LW Group will adopt and establish a defined contribution plan that is intended to qualify under Code Section 401(a), and a related master trust or trusts exempt under Code Section 501(a) (such plan and trust, the LW Spinoff 401(k) Plan ), which will have terms and features (including employer contribution provisions) that are substantially similar to the terms and features of the ConAgra Plans that are defined contribution plans intended to qualify under Section 401(a) of the Code listed on Schedule 8.1(a) (such ConAgra Plans, the ConAgra 401(k) Plans ) such that (for the avoidance of doubt) each ConAgra 401(k) Plan is substantially replicated by the LW Spinoff 401(k) Plan. From and after the Distribution Date except as otherwise provided in the Transition Services Agreement, Lamb Weston will, or will cause a member of the LW Group to, cause the LW Spinoff 401(k) Plan to cover any LW Employee and Former LW Business Employee who, as of immediately prior to the Distribution Date, participates in or has an account under a ConAgra 401(k) Plan. Except as set forth in the Transition Services Agreement, Lamb Weston or a member of the LW Group will be solely responsible for taking all necessary, reasonable, and appropriate actions (including the submission of the LW Spinoff 401(k) Plan to the Internal Revenue Service for a determination of tax-qualified status) to establish, maintain and administer the LW Spinoff 401(k) Plan so that it is qualified under Section 401(a) of the Code and that the related trust thereunder is exempt under Section 501(a) of the Code. The LW Spinoff 401(k) Plan will assume liability for all benefits accrued or earned (whether or not vested) by LW Employees and Former LW Business Employees under the corresponding ConAgra 401(k) Plan as of immediately prior to the effective date of the LW Spinoff 401(k) Plan or, if later, the Applicable Transfer Date.
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(b) On or as soon as reasonably practicable following the effective date of the LW Spinoff 401(k) Plan or, if later, the Applicable Transfer Date (but not later than 30 days thereafter), ConAgra or another member of the ConAgra Group will cause each ConAgra 401(k) Plan to transfer to the LW Spinoff 401(k) Plan, and Lamb Weston or another member of the LW Group will cause the LW Spinoff 401(k) Plan to accept the transfer of, the accounts (including unvested account balances), related liabilities and related assets in such ConAgra 401(k) Plans attributable to LW Employees and Former LW Business Employees and their respective Plan Payees. The transfer of assets will be in cash or in kind (as determined by the transferor) and include outstanding loan balances and amounts forfeited by Former LW Business Employees that have not yet been reallocated or applied to the payment of contributions or expenses and be conducted in accordance with Code Section 414(l) and Treasury Regulation Section 1.414(l)-1 and Section 208 of ERISA. Lamb Weston or a member of the LW Group will be responsible for reimbursing ConAgra or a member of the ConAgra Group for any portion of the unvested account balances transferred to the LW Spinoff 401(k) Plan from a ConAgra 401(k) Plan that are forfeited by a LW Employee after such transfer.
(c) Except as otherwise provided in the Transition Services Agreement, on or as soon as reasonably practicable following the Applicable Transfer Date (but not later than 30 days thereafter), Lamb Weston or a member of the LW Group will cause the accounts (including unvested account balances), related liabilities, and related assets in the LW Spinoff 401(k) Plan attributable to any ConAgra Transferees and their respective Plan Payees (including any outstanding loan balances) to be transferred in cash or in-kind (as determined by the transferor) in accordance with Code Section 414(l) and Treasury Regulation Section 1.414(l)-1 and Section 208 of ERISA to the applicable ConAgra 401(k) Plan(s). ConAgra or another member of the ConAgra Group will cause the applicable ConAgra 401(k) Plan(s) to accept such transfer of accounts, liabilities and assets.
(d) From and after the Distribution Date, except as specifically provided in paragraph (c) above, Lamb Weston and the LW Group will be solely and exclusively responsible for all obligations and liabilities with respect to, or in any way related to, the LW Spinoff 401(k) Plan, whether accrued before, on or after the Distribution Date. For the avoidance of doubt, except as otherwise provided in the Transition Services Agreement, the LW Spinoff 401(k) Plan will, to the extent required by Law and the terms of the LW Spinoff 401(k) Plan, have the sole and exclusive obligation to restore the unvested portion of any account attributable to any individual who becomes employed by a member of the LW Group and whose employment with ConAgra or any of its Affiliates, or a member of the ConAgra Group, terminated on or before the Distribution Date at a time when such individuals benefits under the applicable ConAgra 401(k) Plan(s) were not fully vested. Furthermore, except as otherwise provided in the Transition Services Agreement, the LW Spinoff 401(k) Plan will have the sole obligation to restore accounts attributable to any lost participants who were formerly employed in the LW Business to the extent required by applicable Law.
Section 8.2 Continuation of Elections . As of the effective date of the LW Spinoff 401(k) Plan or, if later, the Applicable Transfer Date, Lamb Weston (acting
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directly or through a member of the LW Group) will cause the LW Spinoff 401(k) Plan to recognize and maintain all elections, including investment elections that remain applicable after the Distribution and payment form elections, beneficiary designations, and the rights of alternate payees under qualified domestic relations orders with respect to LW Employees and Former LW Business Employees and their respective Plan Payees under the corresponding ConAgra 401(k) Plan.
Section 8.3 Contributions Due . All amounts payable to the ConAgra 401(k) Plans with respect to employee deferrals, matching contributions and employer contributions for LW Employees relating to a time period ending on or prior to the Distribution Date, determined in accordance with the terms and provisions of the applicable ConAgra 401(k) Plan, ERISA and the Code, will be paid by ConAgra or another member of the ConAgra Group to the appropriate ConAgra 401(k) Plan prior to the date of any asset transfer described in Section 8.1(b) .
ARTICLE IX
NONQUALIFIED RETIREMENT PLANS
Section 9.1 LW Spinoff NQDC Plans .
(a) Except as otherwise provided in the Transition Services Agreement, effective as of the Distribution Date, Lamb Weston or another member of the LW Group will establish for the benefit of the LW Employees, Former LW Business Employees and LW Directors a nonqualified deferred compensation plan or plans (such plan or plans, the LW Spinoff NQDC Plans ). The LW Spinoff NQDC Plans will have terms and features (including employer contribution provisions) that are substantially similar to the ConAgra Benefit Plans that are nonqualified deferred compensation plans listed on Schedule 9.1(a) (such plans, the ConAgra NQDC Plans ) such that (for the avoidance of doubt), the ConAgra NQDC Plans are substantially replicated by the LW Spinoff NQDC Plans. Except as otherwise provided in the Transition Services Agreement, Lamb Weston or a member of the LW Group will be solely responsible for taking all necessary, reasonable, and appropriate actions to establish, maintain and administer the LW Spinoff NQDC Plans so that it does not result in adverse Tax consequences under Code Section 409A. Except as set forth on Schedule 9.1(b) , the LW Spinoff NQDC Plans will assume liability for all benefits accrued or earned (whether or not vested) by LW Employees, Former LW Business Employees, LW Directors and their respective Plan Payees under the ConAgra NQDC Plans as of immediately prior to the effective date of the LW Spinoff NQDC Plans or, if later, the Applicable Transfer Date. From and after the Distribution Date, Lamb Weston and the LW Group will be solely and exclusively responsible for all obligations and liabilities with respect to, or in any way related to, the LW Spinoff NQDC Plans, whether accrued before, on or after the Distribution Date. Furthermore, except as permitted in the Transition Services Agreement, Lamb Weston and the LW Group will have the sole obligation to restore in the LW Spinoff NQDC Plans benefits under the ConAgra NQDC Plans attributable to any lost participants who were formerly employed in the LW Business.
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(b) Except as set forth on Schedule 9.1(b) , effective as of the effective date of the LW Spinoff NQDC Plans, ConAgra shall take, or cause a member of ConAgra Group or LW Group to have taken, all action necessary and appropriate to transfer to the LW Group, for the LW Groups sole use and benefit in complying with its obligations under this Article IX, any and all amounts set aside, in a rabbi trust with respect to the benefits of LW Employees, Former LW Business Employees and LW Directors under the ConAgra NQDC Plans and such amounts will be used only with respect to LW Employees, Former LW Business Employees and LW Directors.
(c) From and after the Distribution Date, ConAgra and the ConAgra Group will be solely and exclusively responsible for all obligations and liabilities with respect to, or in any way related to, the nonqualified retirement plans sponsored or maintained by a member of the ConAgra Group (including, but not limited to, the ConAgra NQDC Plans) to the extent such obligations and liabilities are not specifically assumed by a member of the LW Group or the LW Spinoff NQDC Plans pursuant to Section 9.1(a) .
Section 9.2 No Distributions on Separation . ConAgra and Lamb Weston acknowledge that neither the Distribution nor any of the other transactions contemplated by this Employee Matters Agreement, the Separation Agreement or the other Transaction Documents will trigger a payment or distribution of compensation under any Benefit Plan that is a nonqualified retirement plan for any ConAgra Employee, LW Employee, Former ConAgra Employee, Former LW Business Employee, ConAgra Director or LW Director and, consequently, that the payment or distribution of any compensation to which any ConAgra Employee, LW Employee, Former ConAgra Employee, Former LW Business Employee, ConAgra Director or LW Directors is entitled under any such Benefit Plan will occur upon such individuals separation from service from the ConAgra Group or the LW Group, as applicable, or at such other time as specified in the applicable Benefit Plan.
Section 9.3 Section 409A . ConAgra and Lamb Weston will cooperate in good faith so that neither the Distribution nor any of the transfers contemplated by this Article IX will result in adverse Tax consequences under Code Section 409A to any current or former employee or director of any member of the ConAgra Group or any member of the LW Group, or their respective Plan Payees, in respect of his or her benefits under any ConAgra Plan or LW Plan.
Section 9.4 Continuation of Elections . As of the effective date of the LW Spinoff NQDC Plans or, if later, the Applicable Transfer Date and as permitted by Code Section 409A, Lamb Weston (acting directly or through a member of the LW Group) will cause the LW Spinoff NQDC Plans to recognize and maintain existing elections, including deferral, payment form elections, and valid (pursuant to the judgment of ConAgra) beneficiary designations with respect to the LW Employees, Former LW Business Employees and LW Directors under the ConAgra NQDC Plans, as applicable.
Section 9.5 Delayed Transfer Employees . Any LW Transferee will be treated in the same manner as a LW Employee under this Article IX, except that such LW
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Transferee may experience a separation from service (within the meaning of Code Section 409A) on his or her Applicable Transfer Date. In addition, the ConAgra Group will assume and be solely responsible, pursuant to the terms of the ConAgra NQDC Plans, for any benefits accrued by any ConAgra Transferee under the LW Spinoff NQDC Plans, and the LW Group will have no liability with respect thereto.
ARTICLE X
CONAGRA EQUITY AWARDS
Section 10.1 Outstanding ConAgra Equity Awards .
(a) Each ConAgra Equity Award that is outstanding as of the Distribution will be adjusted as described below, so that each ConAgra Equity Award held by a ConAgra Participant will be adjusted to be an Adjusted ConAgra Equity Award, and each ConAgra Equity Award held by a LW Participant will be adjusted and converted into a LW Equity Award, in each case, unless otherwise provided in this Section 10.1(a) ; provided , however , that, effective immediately prior to the Distribution, the Human Resources Committee (or such other committee of the ConAgra Board authorized by the ConAgra Board or such other delegate as authorized by the Human Resources Committee or such other committee) may provide for different adjustments with respect to some or all of a holders ConAgra Equity Awards. For greater certainty, any adjustments made by the Human Resources Committee (or such other committee of the ConAgra Board authorized by the ConAgra Board or such other delegate as authorized by the Human Resources Committee or such other committee) will be deemed incorporated by reference herein as if fully set forth below and will be binding on the parties hereto and their respective Subsidiaries.
(i) Each ConAgra Option generally will be adjusted in the manner described below, effective as of the Distribution Date and immediately prior to the Distribution, pursuant to the adjustments provisions of the applicable ConAgra Equity Plan, so that immediately following the Distribution each ConAgra Option holder who is a ConAgra Participant will hold Adjusted ConAgra Options, and each ConAgra Option holder who is a LW Participant will hold LW Options, in each case, in lieu of the ConAgra Options previously held. The following procedure will generally be applied to each ConAgra Option with the same grant date and exercise price held by each ConAgra Option holder as of the Distribution Date:
(A) Each Adjusted ConAgra Option will have an exercise price equal to the product (rounded up to the nearest cent) of (1) the applicable Option Exercise Price multiplied by (2) a fraction, (a) the numerator of which is the Post-Distribution ConAgra Share Price and (b) the denominator of which is the Pre-Distribution ConAgra Share Price. The number of shares of ConAgra Common Stock subject to the Adjusted ConAgra Options will be equal to the product (rounded down to the nearest whole share) of (1) the number of shares subject to the ConAgra Option held by such
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ConAgra Participant immediately prior to the Distribution Date and (2) a fraction, (a) the numerator of which is the Pre-Distribution ConAgra Share Price and (b) the denominator of which is the Post-Distribution ConAgra Share Price. Such Adjusted ConAgra Options will be subject to the same vesting requirements and dates and other terms and conditions as the ConAgra Options to which they relate.
(B) Each LW Option will have an exercise price equal to the product (rounded up to the nearest cent) of (1) the applicable Option Exercise Price multiplied by (2) a fraction, (a) the numerator of which is the LW Share Price and (b) the denominator of which is the Pre-Distribution ConAgra Share Price. The number of shares of SpinCo Common Stock subject to the LW Options will be equal the product (rounded down to the nearest whole share) of (1) the number of shares subject to the ConAgra Option held by such LW Participant immediately prior to the Distribution Date and (2) a fraction, (a) the numerator of which is the Pre-Distribution ConAgra Share Price and (b) the denominator of which is the LW Share Price. Each LW Option will be subject to the same vesting requirements and other terms and conditions as the ConAgra Option to which it relates.
(ii) With respect to ConAgra RSUs:
(A) ConAgra RSUs held by each ConAgra Participant will be adjusted, effective as of the Distribution Date and immediately prior to the Distribution, pursuant to the adjustments provisions of the applicable ConAgra Equity Plan, and will be subject to substantially the same terms, vesting conditions and other restrictions, if any, that were applicable to such ConAgra RSUs immediately prior to the Distribution Date ( Adjusted ConAgra RSUs ). The number of shares of ConAgra Common Stock subject to the Adjusted ConAgra RSUs will be equal to the product (rounded down to the nearest whole share) of (1) the number of shares of ConAgra Common Stock subject to the ConAgra RSU held by the ConAgra Participant immediately prior to the Distribution Date and (2) a fraction, (a) the numerator of which is the Pre-Distribution ConAgra Share Price and (b) the denominator of which is the Post-Distribution ConAgra Share Price.
(B) ConAgra RSUs held by each LW Participant will, effective as of the Distribution Date and immediately prior to the Distribution, be adjusted and converted into an award of LW RSUs. Pursuant to the adjustments provisions of the applicable ConAgra Equity Plan, the award of LW RSUs will be subject to substantially the same terms, vesting conditions and other restrictions, if any,
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that were applicable to such adjusted ConAgra RSUs immediately prior to the Distribution Date. The number of shares of SpinCo Common Stock subject to such LW RSUs for each such LW Participant will be equal to the product (rounded down to the nearest whole share) of (1) the number of shares of ConAgra Common Stock subject to such ConAgra RSUs held by such LW Participant immediately prior to the Distribution Date and (2) a fraction, (a) the numerator of which is the Pre-Distribution ConAgra Share Price and (b) the denominator of which is the LW Share Price.
(iii) Each ConAgra Performance Share Award generally will be adjusted in the manner described below, effective as of the Distribution Date and immediately prior to the Distribution, pursuant to the adjustments provisions of the applicable ConAgra Equity Plan, so that immediately following the Distribution each ConAgra Performance Share Award holder who is a ConAgra Participant will hold Adjusted ConAgra Performance Share Awards, and each ConAgra Performance Share Award holder who is a LW Participant will hold LW Performance Share Awards, in each case, in lieu of the ConAgra Performance Share Awards previously held.
(A) The following procedure will be applied to each outstanding ConAgra Performance Share Award with a performance period relating to fiscal years 2015 to 2017, effective as of the Distribution Date and immediately prior to the Distribution:
(1) Each outstanding ConAgra Performance Share Award with a performance period relating to fiscal years 2015 to 2017 that is not a 162(m) Award held by a ConAgra Participant shall be adjusted into a new performance share award, with respect to the number of shares of ConAgra Common Stock (rounded down to the nearest whole share) determined by multiplying (1) the earned number of shares of ConAgra Common Stock subject to such ConAgra Performance Share Award (as determined pursuant to Section 10.1(a)(iii)(A)(4) below) by (2) a fraction, (a) the numerator of which is the Pre-Distribution ConAgra Share Price and (b) the denominator of which is the Post-Distribution ConAgra Share Price (each, an Adjusted ConAgra 2015-2017 Non-162(m) Performance Share Award ). Such Adjusted ConAgra 2015-2017 Non-162(m) Performance Share Award shall be subject to the same vesting requirements and dates and other terms and conditions as the ConAgra Performance Shares to which they relate, provided that the vesting criteria applicable to such Adjusted ConAgra 2015-2017 Non-162(m) Performance Share Award shall be adjusted to provide for solely service-based vesting.
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(2) Each outstanding ConAgra Performance Share Award with a performance period relating to fiscal years 2015 to 2017 held by a LW Participant shall be adjusted and converted to a grant of LW Performance Share Awards by SpinCo, with respect to the number of shares of SpinCo Common Stock (rounded down to the nearest whole share) determined by multiplying (1) the earned number of shares of ConAgra Common Stock subject to such ConAgra Performance Share Award (as determined pursuant to Section 10.1(a)(iii)(A)(4) below) by (2) a fraction, (a) the numerator of which is the Pre-Distribution ConAgra Share Price and (b) the denominator of which is the LW Share Price (each, an LW 2015-2017 Performance Share Award ). Such LW 2015-2017 Performance Share Award shall be subject to the same vesting requirements and dates and other terms and conditions as the ConAgra Performance Shares to which they relate, provided that the vesting criteria applicable to such LW 2015-2017 Performance Share Award shall be adjusted to provide for solely service-based vesting.
(3) Each outstanding ConAgra Performance Share Award with a performance period relating to fiscal years 2015 to 2017 that is a 162(m) Award held by a ConAgra Participant shall be adjusted into a new performance share award with respect to the number of shares of ConAgra Common Stock (rounded down to the nearest whole share) determined by multiplying (1) the earned number of shares of ConAgra Common Stock subject to such ConAgra Performance Share Award (as determined pursuant to Section 10.1(a)(iii)(A)(4) below) by (2) a fraction, (a) the numerator of which is the Pre-Distribution ConAgra Share Price and (b) the denominator of which is the Post-Distribution ConAgra Share Price (each, an Adjusted ConAgra 2015-2017 162(m) Performance Share Award ). Such Adjusted ConAgra 2015-2017 162(m) Performance Share Award shall be subject to the same vesting requirements and dates and other terms and conditions as the ConAgra Performance Shares to which they relate, provided
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that the vesting of such award shall remain subject to the achievement of the threshold earnings per share (EPS) performance goal (the EPS Goal ), but the other vesting criteria applicable to such Adjusted ConAgra 2015-2017 162(m) Performance Share Award shall be adjusted to provide for solely service-based vesting.
(4) The determination of whether any portion of a ConAgra Performance Share Award with a performance period relating to fiscal years 2015 to 2017 has been earned shall be based upon the actual achievement of such ConAgra performance objectives (which, for such Performance Share Awards that are 162(m) Awards are the applicable underlying pre-established performance objectives and not the EPS Goal) measured as of the end of the last fiscal period ending prior to the Distribution Date (the Measurement Date ). Such determination will be made by the Human Resources Committee in accordance with the applicable ConAgra Equity Plan, and the 2008 Performance Share Plan. Any portion of a ConAgra Performance Share Award with a performance period relating to fiscal years 2015 to 2017 that has not been earned as of the Measurement Date will be cancelled and forfeited.
(B) Each outstanding ConAgra Performance Share Award with a performance period relating to fiscal years 2016-2018 or fiscal years 2017-2019 held by a ConAgra Participant shall be adjusted to cover the number of shares of ConAgra Common Stock (rounded down to the nearest whole share) determined by multiplying (1) the target number of shares of ConAgra Common Stock subject to such ConAgra Performance Share Award by (2) a fraction, (a) the numerator of which is the Pre-Distribution ConAgra Share Price and (b) the denominator of which is the Post-Distribution ConAgra Share Price (each, an Adjusted ConAgra 2016-2018 Performance Share Award or Adjusted ConAgra 2017-2019 Performance Share Award , as applicable). Such Adjusted ConAgra 2016-2018 Performance Share Awards and Adjusted ConAgra 2017-2019 Performance Share Awards shall have the same terms and conditions (including performance-based vesting conditions or requirements) as were applicable under the corresponding ConAgra Performance Share Awards.
(C) Each outstanding ConAgra Performance Share Award with a performance period relating to fiscal years 2016-2018
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or fiscal years 2017-2019 held by a LW Participant shall be adjusted and converted to a grant of LW Performance Share Awards by SpinCo (rounded down to the nearest whole share) determined by multiplying (1) the target number of shares of ConAgra Common Stock subject to such ConAgra Performance Share Award by (2) a fraction, (a) the numerator of which is the Pre-Distribution ConAgra Share Price and (b) the denominator of which is the LW Share Price (each, a LW 2016-2018 Performance Share Award or LW 2017-2019 Performance Share Award , as applicable). Such LW 2016-2018 Performance Share Awards and LW 2017-2019 Performance Share Awards shall have the same terms and conditions (including performance-based vesting conditions or requirements) as were applicable under the corresponding ConAgra Performance Share Awards.
(b) If an Adjusted ConAgra Equity Award or LW Equity Award is subject to accelerated vesting in connection with a change in control, a change in control will be deemed to have occurred (i) with respect to an Adjusted ConAgra Equity Award, only upon a change in control of ConAgra (as defined in the applicable equity incentive plan or award agreement) and (ii) with respect to a LW Equity Award, only upon a change in control of Lamb Weston (as defined in the applicable equity incentive plan or award agreement). Notwithstanding the foregoing, this Section 10.1(b) will not apply to the extent that it would cause adverse tax consequences under Code Section 409A.
(c) Prior to the Distribution Date, Lamb Weston will establish equity compensation plans, so that upon the Distribution, Lamb Weston will have in effect an equity compensation plan that allows grants of equity compensation awards subject to substantially the same terms as those that apply to the corresponding ConAgra Equity Awards (the LW Equity Plans ). From and after the Distribution Date, each LW Equity Award will be subject to the terms of the applicable Lamb Weston equity compensation plan, the award agreement governing such LW Equity Award and any Employment Agreement to which the applicable holder is a party. From and after the Distribution Date, Lamb Weston will retain, pay, perform, fulfill and discharge all Liabilities arising out of or relating to the LW Equity Awards and ConAgra will retain, pay, perform, fulfill and discharge all Liabilities arising out of or relating to the Adjusted ConAgra Equity Awards.
(d) In all events, the adjustments provided for in this Section 10.1 will be made in a manner that, as determined by ConAgra, avoids adverse Tax consequences to holders under Code Section 409A.
(e) For purposes of this Section 10.1 , each Non-U.S. Delayed Transfer Employee who will be a LW Transferee shall be treated as a LW Participant as of the Distribution and each Non-U.S. Delayed Transfer Employee who will be a ConAgra Transferee shall be treated as a ConAgra Participant as of the Distribution so that any outstanding ConAgra Equity Award held by such Non-U.S. Delayed Transfer Employee as of the Distribution will be adjusted as provided in this Section 10.1 at the same time as any other LW Participant or ConAgra Participant.
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Section 10.2 Conformity with Non-U.S. Laws . Notwithstanding anything to the contrary in this Employee Matters Agreement, (a) to the extent any of the provisions in this Article X (or any equity award described herein) do not conform with applicable non-U.S. laws (including provisions for the collection of withholding taxes), such provisions shall be modified to the extent necessary to conform with such non-U.S. laws in such manner as is equitable and to preserve the intent hereof, as determined by the parties in good faith, and (b) the provisions of this Article X may be modified to the extent necessary to avoid undue cost or administrative burden arising out of the application of this Article X to awards subject to non-U.S. laws.
Section 10.3 Tax Withholding and Reporting .
(a) Except as otherwise required by applicable non-U.S. law, the appropriate member of the ConAgra Group will be responsible for all payroll taxes, withholding and reporting with respect to Adjusted ConAgra Equity Awards held by ConAgra Employees and Former ConAgra Employees. Except as otherwise required by applicable non-U.S. law, the appropriate member of the LW Group will be responsible for all payroll taxes, withholding and reporting with respect to LW Equity Awards held by LW Employees and Former LW Business Employees.
(b) If ConAgra or Lamb Weston determines in its reasonable judgment that any action required under this Article X will not achieve the intended tax, accounting and legal results, including, without limitation, the intended results under Code Section 409A or FASB ASC Topic 718 Stock Compensation, then at the request of ConAgra or Lamb Weston, as applicable, ConAgra or Lamb Weston will mutually cooperate in taking such actions as are necessary or appropriate to achieve such results, or most nearly achieve such results if the originally-intended results are not fully attainable.
(c) Tax deductions with respect to ConAgra Equity Awards and LW Equity Awards will be allocated in accordance with the Tax Sharing Agreement, dated November 8, 2016, by and between ConAgra and SpinCo.
Section 10.4 Employment Treatment .
(a) Continuous employment with the LW Group and the ConAgra Group following the Distribution Date will be deemed to be continuing service for purposes of vesting and exercisability for the LW Equity Awards and the Adjusted ConAgra Equity Awards. However, in the event that a LW Employee terminates employment after the Distribution Date and becomes employed by the ConAgra Group, for purposes of Article X, the LW Employee will be deemed terminated and the terms and conditions of the applicable equity incentive plan under which grants were made will apply. Similarly, in the event that a ConAgra Employee terminates employment after the Distribution Date and becomes employed by the LW Group, for purposes of Article X, the ConAgra Employee will be deemed terminated and the terms and conditions of
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the equity incentive plan under which grants were made will apply. Notwithstanding the foregoing, for purposes of this Article X only, if an individual is a Delayed Transfer Employee, such individual will not be considered to have terminated on his or her Applicable Transfer Date, provided such treatment does not result in adverse Tax consequences under Code Section 409A. In addition, ConAgra Directors and LW Directors will be treated in a similar manner to that described in this Section 10.4(a) .
(b) If, after the Distribution Date, ConAgra or SpinCo identifies an administrative error in the individuals identified as holding Adjusted ConAgra Equity Awards or LW Equity Awards, the amount of such awards so held, the vesting level of such awards, or any other similar error, ConAgra or SpinCo will mutually cooperate in taking such actions as are necessary or appropriate to place, as nearly as reasonably practicable, the individual and ConAgra or SpinCo in the position in which they would have been had the error not occurred.
Section 10.5 Registration . SpinCo will register the shares of SpinCo Common Stock relating to the LW Equity Awards and make any necessary filings with the appropriate Governmental Authorities as required under U.S. and foreign securities Laws.
ARTICLE XI
TRANSITION SERVICES, THIRD-
PARTY CLAIMS
Section 11.1 General Principles . From and after the Distribution Date, any services that a member of the LW Group will provide to the members of the ConAgra Group or that a member of the ConAgra Group will provide to the members of the LW Group relating to any Benefit Plans will be set forth in the Transition Services Agreement (and, to the extent provided therein, a member of the LW Group or the ConAgra Group will provide administrative services referred to in this Employee Matters Agreement).
Section 11.2 Third-Party Claims . Any Third-Party Claim relating to the matters addressed in this Employee Matters Agreement shall be governed by the applicable provisions of the Separation Agreement.
ARTICLE XII
INDEMNIFICATION
Section 12.1 Indemnification . All Liabilities assumed by or allocated to SpinCo or the LW Group pursuant to this Employee Matters Agreement will be deemed to be LW Liabilities for purposes of the Separation Agreement, and all Liabilities retained or assumed by or allocated to ConAgra or the ConAgra Group pursuant to this Employee Matters Agreement will be deemed to be Excluded Liabilities for purposes of the Separation Agreement. All such LW Liabilities and Excluded Liabilities shall be governed by the applicable indemnification terms of the Separation Agreement.
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ARTICLE XIII
COOPERATION
Section 13.1 Cooperation . Following the date of this Employee Matters Agreement, ConAgra and Lamb Weston will, and will cause their respective Subsidiaries, agents and vendors to, use reasonable best efforts to cooperate with respect to any employee compensation, benefits or human resources systems matters that ConAgra and Lamb Weston, as applicable, reasonably determines require the cooperation of both ConAgra and Lamb Weston in order to accomplish the objectives of this Employee Matters Agreement. Without limiting the generality of the preceding sentence, (a) ConAgra and Lamb Weston will cooperate in coordinating each of their respective payroll systems in connection with the transfers of LW Employees to the LW Group and the Distribution, (b) ConAgra will, and will cause its Subsidiaries to, transfer records to Lamb Weston as reasonably necessary for the proper administration of the LW Benefit Plans, to the extent such records are in ConAgras possession, (c) ConAgra and Lamb Weston will share, with each other and with their respective agents and vendors (without obtaining releases unless otherwise required by applicable Law), all employee, participant and beneficiary information necessary for the efficient and accurate administration of the Benefit Plans and Non-U.S. Plans, and (d) ConAgra and Lamb Weston will share such information as is necessary to administer equity awards pursuant to Article X, to provide any required information to holders of such equity awards, and to make any governmental filings with respect thereto.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Vendor Contracts . Prior to the Distribution, ConAgra and Lamb Weston will use reasonable best efforts to (a) negotiate with the current third-party providers to separate and assign the applicable rights and obligations under each group insurance policy, health maintenance organization, administrative services contract, third-party administrator agreement, letter of understanding or arrangement that pertains to one or more ConAgra Plan and one or more LW Plans (each, a Vendor Contract ) to the extent that such rights or obligations pertain to LW Employees and Former LW Business Employees and their respective Plan Payees or, in the alternative, to negotiate with the current third-party providers to provide substantially similar services to the LW Plans on substantially similar terms under separate contracts with Lamb Weston or the LW Plans and (b) to the extent permitted by the applicable third-party provider, obtain and maintain pricing discounts or other preferential terms under the Vendor Contracts.
Section 14.2 Further Assurances . Prior to the Distribution, if either party identifies any commercial or other service that is needed to ensure a smooth and orderly transition of its business in connection with the consummation of the transactions contemplated hereby, and that is not otherwise governed by the provisions of this Employee Matters Agreement, the parties will cooperate in determining whether there is a mutually acceptable arms-length basis on which the other party will provide such service.
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Section 14.3 Employment Taxes Withholding Reporting Responsibility . ConAgra and Lamb Weston hereby agree to follow the standard procedure for United States employment Tax withholding as provided in Section 4 of Rev. Proc. 2004-53, I.R.B. 2004-34. ConAgra will withhold and remit all employment taxes for the last payroll date preceding the Distribution Date with respect to all current and former employees of ConAgra (or a member of the ConAgra Group) and Lamb Weston (or a member of the LW Group) who receive wages on such payroll date.
Section 14.4 Data Privacy . The parties agree that any applicable data privacy Laws and any other obligations of the ConAgra Group and the LW Group to maintain the confidentiality of any employee information or information held by any benefit plans in accordance with applicable Law will govern the disclosure of employee information among the parties under this Employee Matters Agreement. The ConAgra Group and the LW Group will ensure that they each have in place appropriate technical and organizational security measures to protect the personal data of the ConAgra Employees, Former ConAgra Employees, LW Employees and Former LW Business Employees.
Section 14.5 Third-Party Beneficiaries . Nothing contained in this Employee Matters Agreement will be construed to create any third-party beneficiary rights in any Person, including without limitation any ConAgra Employees, Former ConAgra Employees, LW Employees and Former LW Business Employees (including any dependent or beneficiary thereof) nor will this Employee Matters Agreement be deemed to amend any benefit plan of ConAgra, Lamb Weston, or their Affiliates or to prohibit ConAgra, Lamb Weston or their respective Affiliates from amending or terminating any benefit plan.
Section 14.6 Effect if Distribution Does Not Occur . If the Distribution does not occur, then all actions and events that are, under this Employee Matters Agreement, to be taken or occur effective as of the Distribution, or otherwise in connection with the Distribution will not be taken or occur except to the extent specifically agreed by the parties.
Section 14.7 Incorporation of Separation Agreement Provisions . The following provisions of the Separation Agreement are hereby incorporated herein by reference, and unless otherwise expressly specified herein, such provisions will apply as if fully set forth herein (references in this Section 14.7 to an Article or Section will mean Articles or Sections of the Separation Agreement, and references in the material incorporated herein by reference will be references to the Separation Agreement): Section 3.01 (relating to Further Assurances; Efforts to Obtain Consents); Section 3.03 (relating to Access to Information; Cooperation); Section 3.04 (relating to Confidentiality); Sections 3.06 and 3.08 (relating to Privileged Matters and Joint Defense, respectively); Article IV (relating to Indemnification; Limitation of Liability); Article V (relating to Dispute Resolution); and Article VI (relating to Miscellaneous). For the avoidance of doubt, this Agreement does not relate to or cover the LW Joint Ventures (including with respect to the current or former employees, directors or other service providers of the LW Joint Ventures).
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Section 14.8 No Representation or Warranty . Each of ConAgra (on behalf of itself and each member of the ConAgra Group) and Lamb Weston (on behalf of itself and each member of the LW Group) understands and agrees that, except as expressly set forth in this Employee Matters Agreement, the Separation Agreement or in any other Transaction Document, no party (including its Affiliates) to this Employee Matters Agreement, the Separation Agreement or any other Transaction Document, makes any representation or warranty with respect to any matter in this Employee Matters Agreement, including, without limitation, any representation or warranty with respect to the legal or Tax status or compliance of any Benefit Plan or Non-U.S. Plan, compensation arrangement or Employment Agreement, and ConAgra disclaims any and all liability with respect thereto. Except as expressly set forth in this Employee Matters Agreement, the Separation Agreement or any other Transaction Document, none of ConAgra, Lamb Weston or any of their respective Subsidiaries (including their respective Affiliates) makes any representation or warranty about and will not have any Liability for the accuracy of or omissions from any information, documents or materials made available in connection with entering into this Employee Matters Agreement, the Separation Agreement or any other Transaction Documents or the transactions contemplated hereby or thereby.
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IN WITNESS WHEREOF, the parties have caused this Employee Matters Agreement to be executed on the date first written above by their respective duly authorized officers.
CONAGRA FOODS, INC. | ||||
By: |
/s/ Colleen R. Batcheler |
|||
Name: | Colleen R. Batcheler | |||
Title: | Executive Vice President, General Counsel and Corporate Secretary |
LAMB WESTON HOLDINGS, INC. | ||||
By: |
/s/ Thomas P. Werner |
|||
Name: | Thomas P. Werner | |||
Title: | President and Chief Executive Officer |
Schedule 1.1
LW Employee ConAgra Participants
1. John F. Gehring
Schedule 2.5
Collective Bargaining Agreements
As of the Distribution Date, the following Collective Bargaining Agreements apply to the LW Employees or Former LW Business Employees:
1. | Labor Agreement between Lamb-Weston, Inc., American Falls, Idaho and International Brotherhood of Teamsters Local Union No. 983 (January 4, 2016 through January 6, 2019). |
2. | Labor Agreement between ConAgra Foods, Lamb Weston, Pasco, Washington and Teamsters Local Union No. 839 (June 30, 2014 through July 2, 2017). |
3. | Collective Bargaining Agreement between Lamb Weston (and ConAgra Foods), Connell, Washington and International Union of Operating Engineers, Local Union No. 280 (August 8, 2016 through August 12, 2018). |
4. | Collective Bargaining Agreement between ConAgra Foods, Lamb Weston, Quincy, Washington and Teamsters Local Union No. 760 (June 1, 2016 to May 31, 2019). |
5. | Collective Agreement between ConAgra, Limited Lamb-Weston Division, Taber, Alberta, Canada and United Steelworkers, Local Union 1-207 (March 16, 2014 to March 17, 2017). |
6. | Tentative Agreement between ConAgra Foods, Lamb Westin Delhi, Louisiana and UFCW Local No. 455 (June 2, 2013 through June 3, 2017). |
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Schedule 5.3
Annual Cash Incentive Exceptions
1. | Prior to the Distribution Date, John F. Gehring will continue to participate in the ConAgra Foods, Inc. FY17 Management Incentive Plan (the ConAgra MIP). Mr. Gehrings ConAgra MIP award shall be pro-rated based on the number of days employed with ConAgra during FY17 through the Distribution. Mr. Gehrings ConAgra MIP award, if earned, shall be payable by ConAgra at the time other ConAgra MIP awards are paid for other eligible participants. On and after the Distribution Date, Mr. Gehring will be eligible to participate in the Lamb Weston FY17 Management Incentive Plan (the Lamb Weston MIP). Mr. Gehrings Lamb Weston MIP award shall be based on the number of days employed with Lamb Weston on and after the Distribution Date, if earned, will be payable by Lamb Weston, and shall be subject to all other terms of the Lamb Weston MIP. |
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Schedule 5.4
Employment Agreements Retained by ConAgra
1. | Interim Position and Non-Compete Agreement, entered into on September 27, 2016, by and between ConAgra Foods, Inc. and John F. Gehring. |
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Schedule 6.1(b)
ConAgra Welfare Plans
1. | All health and welfare benefits offered under the ConAgra Foods, Inc. Welfare Benefit Wrap Plan. |
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Schedule 7.1(a)
ConAgra Pension Plans
1. | The ConAgra Foods, Inc. Pension Plan for Salaried Employees. |
2. | The ConAgra Foods, Inc. Pension Plan for Hourly Rate Production Employees. |
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Schedule 8.1(a)
ConAgra 401(k) Plans
1. | The ConAgra Foods Retirement Income Savings Plan. |
2. | The ConAgra Foods Retirement Income Savings Plan for Hourly Rated Production Employees. |
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Schedule 9.1(a)
ConAgra NQDC Plans
1. | The ConAgra Foods, Inc. Amended and Restated Voluntary Deferred Compensation Plan. |
2. | The ConAgra Foods, Inc. Directors Deferred Compensation Plan. |
3. | The ConAgra Foods, Inc. Nonqualified Pension Plan |
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Schedule 9.1(b)
NQDC Plan Transfer Exceptions
1. | The liabilities associated with (and any assets set aside to fund the obligations under) John F. Gehrings accounts and accrued benefits under the ConAgra Foods, Inc. Amended and Restated Non-Qualified CRISP Plan, the ConAgra Foods, Inc. Amended and Restated Voluntary Deferred Compensation Plan, and the ConAgra Foods, Inc. Nonqualified Pension Plan will not be transferred to Lamb Weston or any nonqualified deferred compensation plan of Lamb Weston. |
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Exhibit 10.3
TRANSITION SERVICES AGREEMENT
BETWEEN
CONAGRA FOODS, INC.
AND
LAMB WESTON HOLDINGS, INC.
Dated November 8, 2016
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT dated November 8, 2016 (this Agreement ), is between ConAgra Foods, Inc., a Delaware corporation ( ConAgra ), and Lamb Weston Holdings, Inc., a Delaware corporation ( Lamb Weston ). ConAgra and Lamb Weston are sometimes referred to herein individually as a Party , and collectively as the Parties .
RECITALS
A. Lamb Weston and ConAgra are Parties to that certain Separation and Distribution Agreement dated as of even date herewith (the Separation Agreement ).
B. Pursuant to the Separation Agreement, the Parties agreed to separate ConAgra into two companies (1) Lamb Weston which will own and conduct, directly and indirectly, the LW Business; and (2) ConAgra, which will continue to own and conduct, directly and indirectly, the Retained Business (the Separation ).
C. In connection with the transactions contemplated by the Separation Agreement and in order to ensure a smooth transition following the Separation, each Party desires that the other Party provide, or cause its Affiliates or contractors to provide, certain transition services.
D. It is the intent of the Parties that the Services be provided at cost, and therefore, the Fees set forth on Annex B were calculated to reflect costs.
In consideration of the forgoing and the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . Unless otherwise defined herein, each capitalized term will have the meaning specified for such term in the Separation Agreement. As used in this Agreement:
Additional Service has the meaning set forth in Section 2.2 .
Agreement has the meaning set forth in the Preamble.
Authorized Representative means, for each Party, any of the individuals listed on Annex A under the name of such Party.
Availed Party has the meaning set forth in Section 5.2(a) .
ConAgra has the meaning set forth in the Preamble.
Eligible Services has the meaning set forth in Section 6.2(a) .
Extendable Service has the meaning set forth in Section 6.1(b) .
Fees means the fees for a particular Service as set forth on Annex B .
Force Majeure Events has the meaning set forth in Section 3.5(b) .
Invoice has the meaning set forth in Section 4.3(a) .
Lamb Weston has the meaning set forth in the Preamble.
Objection Notice has the meaning set forth in Section 4.4 .
Partial Termination has the meaning set forth in the Section 6.2(a) .
Party has the meaning set forth in the Preamble.
Payment Due Date has the meaning set forth in Section 4.3(b) .
Safety and Security Policies has the meaning set forth in Section 5.2(a) .
Separation has the meaning set forth in the Recitals.
Separation Agreement has the meaning set forth in the Recitals.
Service Provider means ConAgra or any of its Subsidiaries providing a Service hereunder.
Service Recipient means Lamb Weston or any of its Subsidiaries receiving a Service hereunder.
Service Recipient Data means all of the data and information owned and provided solely by the Service Recipient, or created by the Service Provider solely on behalf, or for the benefit, of the Service Recipient (including any such data and information created by the Service Provider or the Service Recipient using the Service Providers computer systems or software) in relation to the provision of the Services.
Service Term means the term for a particular Service as set forth on Annex B .
Services means the Services generally described on Annex B and any other Service provided by ConAgra or any of its Subsidiaries pursuant to this Agreement.
Systems has the meaning set forth in Section 5.2(a) .
Term has the meaning set forth in Section 6.1(a) .
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ARTICLE II
PERFORMANCE AND SERVICES
Section 2.1 General .
(a) During the Term, and subject to the terms and conditions of this Agreement, ConAgra will provide, or cause to be provided, the Services to Lamb Weston and its Subsidiaries. The applicable Fee for each Service will be the specified Fee for such Service set forth on Annex B , and the applicable Service Term for each Service will be the specified Service Term for such Service set forth on Annex B . Notwithstanding anything to the contrary contained herein or on any Annex, ConAgra will have no obligation under this Agreement to: (i) operate the LW Business or any portion thereof (it being acknowledged and agreed by ConAgra and Lamb Weston that providing the Services will not be deemed to be operating the LW Business or any portion thereof); (ii) advance funds or extend credit to Lamb Weston; (iii) hire new employees for the purpose of providing the Services; (iv) provide Services to any Person other than members of the LW Group; or (v) implement systems, processes, technologies, plans or initiatives developed, acquired or utilized by ConAgra whether before or after the Distribution Date.
(b) Notwithstanding anything to the contrary in this Agreement, neither ConAgra nor Lamb Weston (nor any of their respective Subsidiaries) will be required to perform Services hereunder or take any actions relating thereto that conflict with or violate any applicable Law, contract, license, sublicense, authorization, certification or permit.
Section 2.2 Additional Services . If Lamb Weston reasonably determines that additional transition services (not listed on Annex B ) of the type previously provided by the ConAgra Group to the LW Business are necessary to conduct the LW Business, and Lamb Weston or its Subsidiaries are not able to provide such services to the LW Business or such services are not commercially available from third party providers, then Lamb Weston may provide written notice thereof to ConAgra. Upon receipt of such notice by ConAgra, if ConAgra is willing, in its sole discretion, to provide such additional service during the Term, the Parties will negotiate in good faith an amendment to Annex B setting forth the additional service (each such service an Additional Service ), the terms and conditions for the provision of such Additional Service and the Fees payable by Lamb Weston for such Additional Service, such Fees to be determined on an arms-length basis with the intent that they reflect costs.
Section 2.3 Service Requests . Any requests by a Party to the other Party regarding the Services or any modification or alteration to the provision of the Services must be made by an Authorized Representative (it being understood that the receiving Party will not be obligated to agree to any modification or alteration requested thereby). Notwithstanding anything to the contrary hereunder, each Party may avail itself of the remedies set forth in Section 6.3 without fulfilling the notice requirements of this Section 2.3 .
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Section 2.4 Access . Subject to Section 5.2 , Lamb Weston, at the reasonable request of ConAgra, will make available on a timely basis to ConAgra all information reasonably requested by ConAgra to enable it to provide the Services. Lamb Weston will give ConAgra and its Affiliates, employees, agents and representatives, as reasonably requested by ConAgra, reasonable access, during regular business hours and at such other times as are reasonably required, to the premises of the LW Business for the purposes of providing the Services.
ARTICLE III
SERVICE QUALITY; INDEPENDENT CONTRACTOR
Section 3.1 Service Quality .
(a) The Service Provider will perform the Services in a manner and quality that is substantially consistent with the Partys past practice (including as to quantity) in performing the Services for the LW Business, and in any event in compliance with any terms or service levels set forth on the applicable Annex. The Service Recipient will use the Services in substantially the same manner and on substantially the same scale as they were used by such Party and its Affiliates in the past practice of the LW Business, prior to the Distribution Date.
(b) Each Party acknowledges and agrees that certain of the Services to be provided under this Agreement have been, and will continue to be provided (in accordance with this Agreement and the Annexes hereto) to the LW Business by third parties designated by the Service Provider. To the extent so provided, the Party responsible for providing such Services will use Commercially Reasonable Efforts to (i) cause such third parties to provide such Services under this Agreement and/or (ii) enable the Party seeking the benefit of such Services and its Subsidiaries to avail itself of such Services; provided , however , that if any such third party is unable or unwilling to provide any such Services, the Parties agree to use their Commercially Reasonable Efforts to determine the manner, if any, in which such Services can best be provided (it being acknowledged and agreed that any costs or expenses to be incurred in connection with obtaining a third party to provide any such Services will be paid by the Party to which such Services are provided; provided that the Service Provider will use Commercially Reasonable Efforts to communicate the costs or expenses expected to be incurred in advance of incurring such costs or expenses).
Section 3.2 Independent Contractor; Assets .
(a) The Service Provider is an independent contractor. All employees and representatives of the Service Provider and any of its Subsidiaries involved in providing Services will be under the exclusive direction, control and supervision of the Service Provider or its Subsidiaries (or their subcontractors) providing such Services, and not of the Service Recipient. The Service Provider or its Subsidiaries (or their subcontractors) providing the Services will be solely responsible for compensation of its employees, and for all withholding, employment or payroll taxes, unemployment insurance, workers compensation, and any other insurance and fringe benefits with respect to such
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employees. The Service Provider or its Subsidiaries (or their subcontractors) providing the Services will have the exclusive right to hire and fire any of its employees in accordance with applicable Law. The Service Recipient will have no right to direct and control any of the employees or representatives of the Party or its Subsidiaries (or their subcontractors) providing such Services.
(b) All procedures, methods, systems, strategies, tools, equipment, facilities and other resources used by a Party, any of its Subsidiaries or any third party service provider in connection with the provision of the Services hereunder will remain the property of such Party, its Subsidiaries or such service providers and, except as otherwise provided herein, will at all times be under the sole direction and control of such Party, its Subsidiaries or such third party service provider. No license under any patents, know-how, trade secrets, copyrights or other rights is granted by this Agreement or any disclosure in connection with this Agreement by either Party.
Section 3.3 Uses of Services . The Service Provider will be required to provide the Services only to the Service Recipient and the Service Recipients Subsidiaries in connection with the Service Recipients operation of the Business. The Service Recipient may not resell any Services to any Person whatsoever or permit the use of such Services by any Person other than in connection with the operation of the Business in the ordinary course of business.
Section 3.4 Transition of Responsibilities . Lamb Weston agrees to use Commercially Reasonable Efforts to reduce or eliminate its and its Subsidiaries dependence on each Service as soon as is reasonably practicable. Each Party agrees to cooperate with the other Party to facilitate the smooth transition of the Services being provided to the Service Recipient by the Service Provider.
Section 3.5 Disclaimer of Warranties: Force Majeure .
(a) Except as expressly set forth in this Agreement: (i) Lamb Weston acknowledges and agrees (on behalf of itself and any other Service Recipient) that ConAgra makes no warranties of any kind with respect to the Services to be provided hereunder; and (ii) ConAgra hereby expressly disclaims all warranties with respect to the Services to be provided hereunder, as further set forth immediately below.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT WILL BE PROVIDED AS-IS, WHERE-IS, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, TITLE OR ANY OTHER WARRANTY WHATSOEVER.
(b) Notwithstanding anything to the contrary contained in this Agreement, neither Party will be liable for any interruption, delay or failure to perform any obligation under this Agreement (but specifically excluding any inability or failure to pay for
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Services rendered hereunder) when such interruption, delay or failure results from causes beyond such Partys reasonable control, including any Law or act of any Governmental Authority, riot, terrorism, insurrection or other hostilities, embargo, fuel or energy shortage, equipment breakdowns, power failure, pandemic, epidemic, fire, flood, earthquake or act of God, strikes, lockouts, labor shortages, failure of a third party to satisfy its contractual obligations, or any other similar cause ( Force Majeure Events ); provided , however , that the affected Party promptly notifies the other Party, in writing, upon learning of the occurrence of the Force Majeure Event. Subject to compliance with the foregoing, a Partys obligations hereunder will be postponed for such time as its performance is suspended or delayed on account of the Force Majeure Event and, upon the cessation of the Force Majeure Event, such Party will use Commercially Reasonable Efforts to resume promptly its performance hereunder.
ARTICLE IV
FEES; PAYMENT
Section 4.1 Fees . The Service Recipient will pay the Service Provider the Fees for the Services provided by such Service Provider under this Agreement. The Fees for the Services are set forth on Annex B .
Section 4.2 Taxes . To the extent required or permitted by applicable Law, there will be added to any Fees due under this Agreement, and Lamb Weston agrees to pay to the Service Provider, amounts equal to any taxes, however designated or levied, based upon such Fees, or upon this Agreement or the Services provided under this Agreement, or their use, including state and local privilege or excise taxes based on gross revenue and any taxes or amounts in lieu thereof paid or payable by the Service Provider hereunder. In the event taxes are not added to an invoice from the Service Provider hereunder, the Service Recipient is responsible to remit to the appropriate tax jurisdiction any additional amounts due including taxes, interest and penalties. The Parties will cooperate with each other to minimize any of these taxes to the extent reasonable. If additional amounts are determined to be due on the Services provided hereunder as a result of an audit by a tax jurisdiction, Lamb Weston agrees to reimburse the Service Provider for the additional amounts due including taxes, interest and penalties. Lamb Weston will have the right to contest the assessment with the tax jurisdiction at its own expense. The Service Provider hereunder will be responsible for penalties or interest solely attributable to its failure to remit invoiced taxes. The Parties further agree that, notwithstanding the foregoing, neither Party will be required to pay any franchise taxes, taxes based on the income of the other Party or personal property taxes on property owned or leased by a Party and used by such Party to provide Services. Notwithstanding anything else in this Agreement to the contrary, the obligations of this Section 4.2 will remain in effect until the expiration of the relevant statutes of limitation.
Section 4.3 Invoices and Payment .
(a) Unless otherwise specified in Annex B , within 10 days following the end of each fiscal month of Service Provider, the Service Provider will submit to the Service
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Recipient for payment a written statement of amounts due under this Agreement for such month (an Invoice ). The Invoice will set forth the Fees and any third party costs or charges that are required to be reimbursed by Service Recipient in connection with the provision of any Services, in the aggregate and itemized, based on the descriptions set forth on Annex B . Each statement will specify the nature of any amounts due for any Fees as set forth on Annex B and will contain reasonably satisfactory documentation in support of such amounts as specified therein and such other supporting detail as the Service Recipient may reasonably require to validate such amounts due.
(b) Unless otherwise specified in Annex B , Lamb Weston will pay all amounts due pursuant to an Invoice no later than 14 days after the date of the Invoice (the Payment Due Date ). All timely payments under this Agreement will be made without early payment discount.
(c) Subject to Section 4.4 , if Lamb Weston fails to pay the full amount of any invoice by the Payment Due Date, such failure will be considered a material default under this Agreement. The remedies provided to each Party by this Section 4.3(c) and by Section 6.3 will be cumulative with respect to any other applicable provisions of this Agreement. Payments made after the Payment Due Date will bear interest at the rates set forth in Annex B for the applicable Services.
Section 4.4 Payment Disputes . The Service Recipient may object to any amounts for any Service invoiced to it at any time before, at the time of, or after payment is made, provided such objection is made in writing ( Objection Notice ) to the Service Provider prior to the Payment Due Date. Any dispute under this Section 4.4 will be resolved in accordance with the provisions of Section 7.8 and Article V of the Separation Agreement. The Service Recipient will pay interest, which will begin to accrue beginning on the date that is 60 days following receipt of the Service Recipients Objection Notice, at an annual rate equal to the Prime Rate plus 2.0% (compounded monthly) on any amounts it is required to pay to the Service Provider upon resolution of the dispute if the dispute is resolved in the Service Providers favor.
ARTICLE V
CONFIDENTIALITY
Section 5.1 Confidentiality . Each Party agrees that the specific terms and conditions of this Agreement and any information, Service Recipient Data and Materials conveyed or otherwise received by or on behalf of a Party in conjunction herewith are confidential and are subject to the terms of the confidentiality provisions set forth in Section 3.04 of the Separation Agreement.
Section 5.2 Security .
(a) If either Party (including its Affiliates and their employees, authorized agents and subcontractors) is given access to the other Partys computer systems or software (collectively, Systems ), premises, equipment, facilities or data in connection with the Transition Services, the Party given access (the Availed Party ) will comply
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with (and will cause its Affiliates, and their employees, authorized agents and subcontractors to comply with) all of the other Partys policies and procedures in relation to the use and access of the other Partys Systems, premises, equipment, facilities or data (collectively, Safety and Security Policies ), and will not tamper with, compromise or circumvent any safety, security or audit measures employed by such other Party. The Availed Party will access and use only those Systems, premises, equipment, facilities and data of the other Party for which it has been granted the right to access and use.
(b) Each Party will use Commercially Reasonable Efforts to ensure that only those of its personnel who are specifically authorized to have access to the Systems, premises, equipment, facilities and data of the other Party gain such access, and use Commercially Reasonable Efforts to prevent unauthorized access, use, destruction, alteration or loss of such Systems, premises, equipment, facilities or data (including, in each case, any information contained therein), including notifying its personnel of the restrictions set forth in this Agreement and of the Safety and Security Policies.
(c) If, at any time, the Availed Party determines that any of its personnel has sought to circumvent, or has circumvented, the Safety and Security Policies, that any unauthorized Availed Party personnel has accessed the Systems, premises, equipment, facilities or data, or that any of its personnel has engaged in activities that may lead to the unauthorized access, use, destruction, alteration or loss of, or damage to, premises, facilities, equipment, data, information or software of the other Party, the Availed Party will promptly terminate any such persons access to the Systems, premises, equipment, facilities or data and promptly notify the other Party. In addition, such other Party will have the right to deny personnel of the Availed Party access to its Systems, premises, equipment, facilities or data upon notice to the Availed Party in the event that the other Party reasonably believes that such personnel have engaged in any of the activities set forth above in this Section 5.2(c) or otherwise pose a security concern. The Availed Party will use Commercially Reasonable Efforts to cooperate with the other Party in investigating any apparent unauthorized access to such other Partys Systems, premises, equipment, facilities or data.
(d) If any Systems, premises, equipment or facilities of a Party are damaged (ordinary wear and tear excepted) due to the conduct of the Availed Party or any of its Affiliates, or their employees, authorized agents or subcontractors, the Availed Party will be liable to the other Party for all costs associated with such damage, to the extent such costs exceed any available insurance proceeds.
ARTICLE VI
TERMINATION
Section 6.1 Term .
(a) The term of this Agreement (the Term ) will commence on the Distribution Date and end on the earliest to occur of (i) the date on which the provision of all Services have terminated pursuant to Annex B (inclusive of any term extension agreed to by the Parties for any Extendable Service pursuant to Section 6.1(b) ), (ii) the date on which the provision of all Services has been terminated by the Parties pursuant to Section 6.2 , (iii) the date this Agreement is terminated pursuant to Section 6.3 and (iv) the date that is 18 months after the Distribution Date.
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(b) Annex B identifies those Services that are eligible for an extension of their respective Service Term as provided in this Section 6.1(b) (each such Service, an Extendable Service ). To the extent reasonably necessary to (i) continue the transition of any Extendable Service from ConAgra or its Affiliates to Lamb Weston, its Affiliates or other providers and (ii) the continued operation of Lamb Westons business in connection therewith, in each case, as reasonably agreed by Lamb Weston and ConAgra, Lamb Weston may elect, by delivering written notice to ConAgra no later than 45 days prior to the end of the then in effect term for such Extendable Service, to extend any such Extendable Service (and, as necessary, the term of this Agreement with respect to such Service) by a period of up to six months (or such shorter extension period as provided in Annex B for such Extendable Service); provided , however , that Lamb Weston may only extend each such Extendable Service one time; provided further , however , that any extension of the Service Term for such Extendable Service is subject to receiving any necessary consents from third party vendors to such extension. To the extent the Service Term of any Extendable Service is extended hereunder, Service Recipient will be responsible for any incremental costs related to enabling such extension.
Section 6.2 Partial Termination .
(a) Annex B identifies those Services that are eligible for termination prior to the expiration of the Service Term ( Eligible Services ). The Service Recipient may, upon providing to the Service Provider the notice specified in Annex B and satisfying any such other requirements specified in Annex B with respect to any such Eligible Service, terminate any Eligible Services that, prior to the expiration of the Service Term, are no longer needed from the Service Provider, in which case this Agreement will terminate as to such Eligible Services (a Partial Termination ); provided , that such termination shall not relieve the Service Recipient from any obligations arising under this Agreement prior to the termination of such Service(s) or its obligations with regard to those Services it continues to receive. The Parties will mutually agree as to the effective date of any Partial Termination.
(b) In the event of any termination prior to the scheduled expiration of the Service Term or of any Partial Termination hereunder, with respect to any terminated Services in which the Fee for such terminated Services is charged as a flat monthly rate, if termination occurs other than the end of the month, there will be no proration of the monthly rate. To the extent any amounts due or advances made hereunder related to costs or expenses that have been or will be incurred and that cannot be recovered by the Service Provider, such amounts due or advances made will not be prorated or reduced and the Service Provider will not be required to refund to the Service Recipient any prorated amount for such costs or expenses; and the Service Recipient will reimburse the Service Provider for (i) Service Recipients proportional share of any third party costs or charges that are required to be paid in connection with the provision of any Services and that cannot be terminated and (ii) any third party cancellation or similar charges incurred as a result of the Service Recipients early termination.
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Section 6.3 Termination of Entire Agreement . Subject to the provisions of Section 6.5 , a Party will have the right to terminate this Agreement or effect a Partial Termination effective upon delivery of written notice to the other Party if the other Party:
(a) makes an assignment for the benefit of creditors, or becomes bankrupt or insolvent, or is petitioned into bankruptcy, or takes advantage (with respect to its own property and business) of any state, federal or foreign bankruptcy or insolvency act, or if a receiver or receiver/manager is appointed for all or any substantial part of its property and business and such receiver or receiver/manager remains undischarged for a period of 30 days; or
(b) materially defaults in the performance of any of its covenants or obligations contained in this Agreement (or, in the case of a Partial Termination, with respect to the Services being terminated) and such default is not remedied to the non-defaulting Partys reasonable satisfaction within 45 days after receipt of written notice by the defaulting Party informing such Party of such default, or if such default is not capable of being cured within 45 days, if the defaulting Party has not promptly begun to cure the default within such 45-day period and thereafter proceeded with all diligence to cure the same.
Section 6.4 Procedures on Termination . Following any termination of this Agreement or Partial Termination, each Party will cooperate with the other Party as reasonably necessary to avoid disruption of the ordinary course of the other Partys and its Subsidiaries businesses. Termination will not affect any right to payment for Services provided prior to termination.
Section 6.5 Effect of Termination . Section 4.1 and Section 4.2 (in each case, with respect to Fees and Taxes attributable to periods prior to termination), Section 3.2 , Section 4.3 , Section 4.4 , Section 6.4 , this Section 6.5 , ARTICLE I , ARTICLE V , ARTICLE VII and ARTICLE VIII will survive any termination of this Agreement. In the event of a Partial Termination, this Agreement will remain in full force and effect with respect to the Services which have not been terminated by the Parties as provided herein. For the avoidance of doubt, the termination of this Agreement with respect to some, but not all, Services identified on Annex B, will not be a termination of this Agreement.
ARTICLE VII
INDEMNIFICATION AND DISPUTE RESOLUTION
Section 7.1 Limitation of Liability .
(a) No Party nor any of such Partys Affiliates will be liable, whether in contract, tort (including negligence and strict liability) or otherwise, for any special, indirect, punitive, incidental or consequential damages whatsoever that in any way arise out of, relate to, or are a consequence of, its performance or nonperformance
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hereunder, or the provision of or failure to provide any Service hereunder, including loss of profits, diminution in value, business interruptions and claims of customers, whether or not such damages are foreseeable or any Party has been advised of the possibility or likelihood of such damages.
(b) Except for Damages arising out of or related to the gross negligence, willful misconduct or bad faith of the Service Provider, in no event will the Service Providers aggregate liability arising under or in connection with this Agreement (or the provision of Services hereunder) exceed the Fees paid or payable to the Service Provider from the Service Recipient pursuant to this Agreement in respect of the Service from which such Damages flows.
(c) Each Party will use Commercially Reasonable Efforts to mitigate the Damages for which the other is responsible hereunder.
Section 7.2 Indemnification by Lamb Weston . Lamb Weston will indemnify, defend and hold harmless each of the ConAgra Indemnified Parties for any Damages attributable to any third party claims asserted against them to the extent arising from or relating to: (i) any material breach of this Agreement by Lamb Weston or (ii) the provision of the Services by ConAgra, the other members of the ConAgra Group or its or their employees, suppliers or contractors, except to the extent that such third party claims for Damages are finally determined by a court of competent jurisdiction to have arisen out of the material breach of this Agreement, gross negligence, willful misconduct or bad faith of ConAgra, the other members of the ConAgra Group or its or their employees, suppliers or contractors in providing the Services.
Section 7.3 Indemnification by ConAgra . ConAgra will indemnify, defend and hold harmless each of the LW Indemnified Parties for any Damages attributable to any third party claims asserted against them to the extent arising from or relating to: (i) any material breach of this Agreement by ConAgra or (ii) any gross negligence, willful misconduct or bad faith by ConAgra, the other members of the ConAgra Group, or its or their employees, suppliers or contractors, in the provision of the Services by ConAgra, the other members of the ConAgra Group or its or their employees, suppliers or contractors pursuant to this Agreement.
Section 7.4 Exclusive Remedy . Except for equitable relief and rights pursuant to Section 4.2 , Section 4.3(b) or ARTICLE V , the indemnification provisions of this ARTICLE VII will be the exclusive remedy for breach of this Agreement.
Section 7.5 Risk Allocation . Each Party agrees that the Fees charged under this Agreement reflect the allocation of risk between the Parties, including the disclaimer of warranties in Section 3.5(a) and the limitations on liability in Section 7.1 . Modifying the allocation of risk from what is stated here would affect the Fees that are charged for the Services, and in consideration of those Fees, each Party agrees to the stated allocation of risk.
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Section 7.6 Indemnification Procedures . All claims for indemnification pursuant to Section 5.2(d) or this ARTICLE VII will be made in accordance with the provisions set forth in Article IV of the Separation Agreement. Notwithstanding anything to the contrary hereunder, neither Party may assert against the other Party or submit to arbitration or legal proceedings any cause of action, dispute or claim for indemnification which accrued more than two years after the later of (a) the occurrence of the act or event giving rise to the underlying cause of action, dispute or claim and (b) the date on which such act or event was, or should have been, in the exercise of reasonable due diligence, discovered by the Party asserting the cause of action, dispute or claim.
Section 7.7 Express Negligence . THE INDEMNITY, RELEASES AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT (INCLUDING ARTICLE II AND THIS ARTICLE VII ) ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE THEREOF NOTWITHSTANDING ANY EXPRESS NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE NEGLIGENCE OR GROSS NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT OR ACTIVE OR PASSIVE) OR OTHER FAULT OR STRICT LIABILITY OF ANY OF THE INDEMNIFIED PARTIES.
Section 7.8 Dispute Resolution . Except for claims arising under ARTICLE V , any Dispute arising out of or relating to this Agreement will be resolved as provided in Article V of the Separation Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments and Waivers .
(a) This Agreement may be amended and any provision of this Agreement may be waived; provided , however , that any such amendment or waiver, as the case may be, is in writing and signed, in the case of an amendment, by the Parties or, in the case of a waiver, by the Party against whom the waiver is to be effective. No course of dealing between or among any Persons having any interest in this Agreement will be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Party under or by reason of this Agreement.
(b) No delay or failure in exercising any right, power or remedy hereunder will affect or operate as a waiver thereof; nor will any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or remedy preclude any further exercise thereof or of any other right, power or remedy. The rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that any Party would otherwise have.
Section 8.2 Notices . All notices, requests, permissions, waivers and other communications hereunder will be in writing and will be deemed to have been duly given (a) upon transmission, if sent by email with confirmation of receipt, (b) when delivered, if delivered personally to the intended recipient, and (c) one Business Day following sending by overnight delivery via an international courier service and, in each case, addressed to a Party at the following address for such Party:
If to ConAgra:
ConAgra Foods, Inc.
222 W. Merchandise Mart Plaza, Suite 1300
Chicago, Illinois 60654
Attention: Colleen Batcheler
Email: colleen.batcheler@conagra.com
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if to Lamb Weston:
Lamb Weston Holdings, Inc.
599 S. Rivershore Lane
Eagle, Idaho 83616
Attention: Eryk Spytek
Email: eryk.spytek@conagra.com
or to such other address(es) as may be furnished in writing by any such Party to the other Party in accordance with the provisions of this Section 8.2 .
Section 8.3 Entire Agreement . This Agreement, including the Annexes hereto and the sections of the Separation Agreement referenced herein, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements and understandings of the Parties of any nature, whether oral or written, with respect to such subject matter.
Section 8.4 No Third-Party Beneficiaries . Except to the extent otherwise provided in ARTICLE VII , this Agreement is solely for the benefit of the Parties and does not confer on third parties any remedy, claim, reimbursement, claim of action or other right in addition to those existing without reference to this Agreement.
Section 8.5 Governing Law . The validity, interpretation and enforcement of this Agreement will be governed by the Laws of the State of Delaware, without regard to the conflict of Laws provisions thereof that would cause the Laws of another state to apply.
Section 8.6 Assignment . No Party may assign its rights or delegate its duties under this Agreement without the written consent of the other Party, except that a Party may assign its rights or delegate its duties under this Agreement to a member of its Group, provided that (a) such Person agrees in writing to be bound by the terms and conditions contained in this Agreement and (b) such assignment or delegation will not relieve any Party of its indemnification obligations or other obligations under this Agreement. Any attempted assignment or delegation in contravention of the foregoing will be void.
Section 8.7 Severability . The Parties agree that (a) the provisions of this Agreement will be severable in the event that for any reason whatsoever any of the provisions
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hereof are invalid, void or otherwise unenforceable, (b) any such invalid, void or otherwise unenforceable provisions will be replaced by other provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions will remain valid and enforceable to the fullest extent permitted by applicable Law.
Section 8.8 Counterparts . This Agreement may be executed in multiple counterparts (any one of which need not contain the signatures of more than one Party), each of which will be deemed to be an original but all of which taken together will constitute one and the same agreement. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or other electronic transmission, will be treated in all manner and respects as an original agreement and will be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any Party, the other Party will re-execute original forms thereof and deliver them to the requesting Party.
Section 8.9 Rules of Construction . The descriptive headings herein are inserted for convenience of reference only and are not intended to be a substantive part of or to affect the meaning or interpretation of this Agreement. Whenever required by the context, any pronoun used in this Agreement or Annexes will include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns, pronouns, and verbs will include the plural and vice versa. Reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. References in this Agreement to any document, instrument or agreement (including this Agreement) includes and incorporates all exhibits, disclosure letters, schedules and other attachments thereto. Unless the context otherwise requires, any references to an Annex, Section or Article will be to an Annex, Section or Article to or of this Agreement. The use of the words include or including in this Agreement or the Schedules will be deemed to be followed by the words without limitation. The use of the word covenant will mean covenant and agreement. The use of the words or, either or any will not be exclusive. Days mean calendar days unless specified as Business Days. References to statutes will include all regulations promulgated thereunder, and references to statutes or regulations will be construed to include all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation as of the date hereof. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Except as otherwise expressly provided elsewhere in this Agreement or any other Transaction Document or any Ancillary Agreement, any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a Party, such Party may give or withhold such agreement, approval or consent, or exercise such right, in its sole and absolute discretion, the Parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.
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Section 8.10 Performance . The Parties agree that irreparable damage would occur if any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed that the Parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of the terms and provisions of this Agreement without proof of actual damages, this being in addition to any other remedy to which any Party is entitled at Law or in equity. Each Party further agrees that no other Party or any other Person will be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.10 , and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument and will not contest the appropriateness of specific performance as a remedy.
[ Signatures on Following Page ]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.
CONAGRA FOODS, INC. | ||
By: | /s/ Colleen R. Batcheler | |
Name: | Colleen R. Batcheler | |
Title: | Executive Vice President, General Counsel and Corporate Secretary | |
LAMB WESTON HOLDINGS, INC. | ||
By: | /s/ Thomas P. Werner | |
Name: | Thomas P. Werner | |
Title: | President and Chief Executive Officer |
Annex A
AUTHORIZED REPRESENTATIVES
[See Attached.]
TSA-Annex A
|
Authorized Representatives
Function
ConAgra
Lamb Weston
TSA Lead
Jim Blakemore
John MacArthur
IT
Michelle Miller / Amit Khot
Bill Cox
HR (HRES/Payroll)
Aubrey Froelich
Linda Baird
Finance & Accounting
Brad Costanzo
Brandon Koehler
Mexico Finance
Tanya Amador
Brandon Koehler
Operations
Tom Culross
Tony Campbell
Supply Chain/Procurement
Bob Hill
Sue Duffy
Marketing
Cynthia Arnold
Danny Bawcom
R&I and Quality
Deann Akins-Lewanthal
Chris Rhynalds
Treasury
Pam Malmos
Scott Schneider
Tax
Ken Groetsema
Mark Wynn
GBS
Jodi Maciejewski
Brandon Koehler
Real Estate & Facilities
John Lewandowski
Scott Schneider
Steering/Escalation Board
Bill Hahn, Dan Jones
LW SLT
Annex B
SERVICES AND FEES
[See Attached.]
TSA Annex B | ||||
Transition Services Agreement Schedule of Services | ||||
Table of Contents |
1.0 Information Technology (Given the 16 month term, IT services are not automatically extendable under TSA Section 6.1b ) |
3 | |||
1.1 Infrastructure Services |
3 | |||
1.1.1 Help Desk |
3 | |||
1.1.2 Operations Support |
5 | |||
1.1.3 Data Center Services / Server Administration |
7 | |||
1.1.4 Network Management |
8 | |||
1.1.5 Client Computing |
9 | |||
1.2 Security Operations |
11 | |||
1.3 Application Support (LW Gold Application List is included as Appendix 1) |
12 | |||
1.4 IT Services |
14 | |||
1.6 Data Center Floor Space and Power |
15 | |||
1.7 Information Technology Transition & Set-up Support |
16 | |||
2.0 Global Business Services (GBS) |
17 | |||
2.1 Accounts Payable * |
17 | |||
2.2 Data Management Organization * |
17 | |||
2.3 Global Business Services COE |
18 | |||
3.0 Human Resources Support (not extendable) |
19 | |||
3.1 Benefits Administration Support (US / Canada / Puerto Rico) |
19 | |||
3.2 Payroll, Payroll Tax and Timekeeping (US, PR and Canada 1 ) |
20 | |||
3.3 People Data Management and Other HR Admin Services |
21 | |||
3.4 International Payroll & Benefits Administration |
23 | |||
4.0 Supply Chain |
24 | |||
4.1 Enterprise Procurement |
24 | |||
5.0 Operations |
24 | |||
5.1 Environment, Health, Safety and Security |
24 | |||
7.0 Marketing Support |
27 | |||
8.0 Corporate Controllers Group |
28 | |||
9.0 Treasury Services (Treasury, Fleet, Credit, Insurance and Real Estate) |
30 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
10.0 Corporate Tax |
32 | |||
10.1 Sales & Use Tax |
32 | |||
10.2 1099s |
32 | |||
10.3 Unclaimed Property |
33 | |||
10.4 Q2 Provision |
33 | |||
11.0 Facilities and Real Estate |
33 | |||
12.0 TSA Program Management |
34 | |||
12.1 Appendix 1: LW Gold Application List |
35 | |||
12.3 Appendix 3: IT Labor Rate Card |
49 | |||
12.4 Appendix 4: IT Incident Management/Service Request Targets and SLAs - insert InfoSys SLA / service level matrix |
49 | |||
12.5 Appendix 5: TSA Governance |
52 |
Page 2 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 3 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||||||
End User Access Administration Provide continued access and use of shared and dedicated applications listed in the Gold Application List. Process LW/Spinco user access requests for applications and network components. Provide user account maintenance and support including: Creation/modification/deletion of user accounts for both shared and dedicated applications in use by the Business as of the Distribution Date. Provide services required for creation/modification/deletion of shared drives and folders as well as the creation/modification/deletion of groups accessing those shared drives and folders. |
|
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header |
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Until
Feb 28, 2018 |
Page 4 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
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1.1.2 Operations Support |
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Shared applications and infrastructure [See Gold Application List] Provide Data Center operations in support of CAG/Parent shared systems including SAP operations . Provide Operations level 1 support on automated and user created incidents for shared infrastructure and shared applications consistent with existing processes and documentation. Provide server level monitoring to ensure performance and availability of shared infrastructure in support of shared applications.
Dedicated applications and infrastructure [See Gold Application List] Provide Data Center operations in support of LW/Spinco dedicated systems Provide Operations level 1 support on automated and user created incidents for dedicated infrastructure and dedicated applications consistent with existing processes and documentation. Provide server level monitoring consistent with existing practices existing for the six (6) month period prior to the Distribution Date to ensure performance and availability of dedicated infrastructure.
Incident Management Escalation Process
Shared applications and infrastructure Follow the existing incident management escalation procedures consistent with escalation procedures for the six (6) month period prior to Distribution Date. LW/Spinco resources will be engaged as necessary for any applications that impact LW/Spinco business functions.
Dedicated applications and infrastructure CAG/Parent will follow the existing incident management escalation procedures consistent with escalation procedures for the six (6) month period prior to the Distribution Date. LW/Spinco resources will be responsible for following the CAG/Parent incident management processes |
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Until
Feb 28, 2018 |
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30 days |
Page 5 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||||||
1.1.2 (cont.) |
Backups and Disaster Recovery
Provide disaster recovery services consistent with current practices existing for the six (6) month period prior to the Distribution Date. Provide file and data restoration within the data center shared systems (listed in Gold Application List). Perform routine backups based on defined SLAs of all transaction data in a secured offsite location Assist in restoration of files and data within CAG/Parent data center for systems listed in the LW Gold Application List upon request of the LW/Spinco.
Change Management
Shared applications and infrastructure Follow existing change management procedures (including change controls) and notify LW/Spinco designated team of any planned production changes.
Dedicated applications and infrastructure LW/Spinco to follow CAG/Parents existing change management procedures (including change controls) and notify CAG/Parent designated team of any planned production changes. |
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Page 6 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 7 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
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1.1.4 Network Management | ||||||||||||||
WAN Provide site connectivity for all existing site circuits connected to the CAG/Parent network Provide connectivity to CAG/Parents data centers to access agreed upon applications (dedicated and shared applications) Provide internet access to each location in accordance of the CAG/Parents electronic communication policy. Provide network monitoring leveraging existing monitoring tools consistent with monitoring provided for the six (6) month period prior to the Distribution Date. Provide telecommunications support for all employees (phone extension, voicemail, etc.) residing at CAG/Parent facilities during the transition period CAG/Parent is responsible for Domain Name Services (DNS) and IP address management Maintain, monitor and manage wide area network data and/or voice circuits and VPNs to and from all existing LW/Spinco locations existing as of the six (6) month period prior to the Distribution Date. Maintain, monitor and manage all shared Data Center network equipment that exists as of the Distribution Date, including, but not limited to, hubs/switches, IP routers, load balancers, circuit demarcation points, cables, and device configurations in support of current network traffic levels of the LW/Spinco. LW/Spinco to maintain, monitor and manage all dedicated network equipment, including, but not limited to, hubs/switches, IP routers, load balancers, circuit demarcation points, cables, and device configurations physically located at dedicated LW/Spinco locations. Provide continued support of remote access for LW/Spinco vendors who were CAG/Parent vendors existing as of the Distribution Date (Excludes providing support for remote access for new LW/Spinco vendors).
LAN In LW/Spinco facilities, LW/Spincoto coordinate activities with third-party service providers where required to provide support for network maintenance services. LW/Spinco to provide connectivity to applicable IT network hosts (desktops, laptops, and printers). |
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Until Feb 28, 2018 |
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TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||||||||
1.1.4 (cont.) |
LAN (cont.) CAG/Parent to provide connectivity to systems as transition is made to LW/Spinco Domain. This access would allow VPN or Citrix remote access to applications. LW/Spinco will provide Level 2 and Level 3 support services for all site equipment including routers, switches, and security devices which are located in existing LW/Spinco locations.
DMZ Provide secure, remote access (via VPN) to the CAG/Parent network under the existing CAG/Parent Electronic Communication Policy |
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1.1.5 Client Computing | ||||||||||||||||
Directory Services Provide support and maintain the shared Active Directory environment Provide user authentication and password management for the LW/Spincos core business systems and logical network LW/Spinco will support and maintain any new Domains.
Image Creation and Maintenance Create and maintain all laptop/PC images LW/Spinco will execute services for device provisioning in LW/Spinco locations per the existing CAG/Parents process.
Home Drives/Messaging /Print/Mobile Create / modify / delete shared drives, folders, and printers as normal business Provide support and maintenance for user email and Jabber consistent with practices for the six (6) month period prior to the Distribution Date Provide Exchange mailbox administration including: adds, modifications, and deletes Provide approved secure web and client access to email users Provide email retention services consistent with CAG/Parent practices for the six (6) month period prior to the Distribution Date Provide support of mobile device management (InTune) LW/Spinco to provide support for mobile devices. |
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Page 9 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||||||||
PC Patching Patching (security and application) all Desktops/PCs attached to the CAG/Parent network. LW/Spinco is responsible for creating and coordinating with the CAG/Parent any dedicated application patches that are required
Desktop Support Provide desktop support using the CAG/Parent standard PC image. CAG/Parent will provide at cost any devices for new LW/Spinco employees that will execute any LW/Spinco applications (dedicated or shared) in accordance with CAG/Parent standard requirements. Cost of equipment will be the responsibility of the LW/Spinco. Any new purchased devices or machines will adhere to CAG/Parent standard image and guideline Any new devices for LW/Spinco will be paid for by LW/Spinco and deployed with CAG image by CAG desktop support team |
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TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
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1.2 Security Operations |
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1.2.1 Security Operations |
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Monitor systems and device logs, network traffic, intrusion detection systems and the client computing security tools to detect any unusual usage patterns, third-party attacks or unauthorized access and promptly report to the LW/Spinco any security incidents involving IT system integrity, confidentiality issues or unauthorized data access. CAG/Parent to monitor, investigate, and promptly report to LW/Spinco any end user reported security incidents involving IT system integrity, confidentiality issues or unauthorized data access Provide physical security to the Companys equipment at the CAG/Parent datacenters. Field equipment security is the responsibility of LW/Spinco. CAG/Parent to provide Anti-virus protection on server and PC assets, and SPAM monitoring services for the LW/Spincos email Provide e-discovery and legal hold services consistent with services provided for the six (6) month period prior to the Distribution Date. Provide security access via existing employee roll-on forms and processes as well as execute employee terminations as requested through existing HR process and SLAs (e.g. Non-Employee contractor status) |
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TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 12 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
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1.3.1 (Cont.) |
Application Support (Continued)
Dedicated Applications Any modifications or upgrades, code changes, break/fix, significant bug fixes, or enhancements will be made by the LW/Spinco. LW/Spinco maintains all existing inbound/outbound interfaces in support of LW/Spinco business processes involving dedicated applications listed in Gold Application List. LW/Spinco will provide maintenance and support services for dedicated applications listed in Gold Application List. If LW/Spinco requires CAG/Parent support services for dedicated applications listed in Gold Application List, those services can be requested and if CAG/Parent is able to provide them they will be billed at a rate consistent with Appendix 3, Rate Table. |
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TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
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1.4 IT Services | ||||||||||||||||
1.4.1 |
IT Supplier Management | |||||||||||||||
Manage application and infrastructure vendor relationships for shared applications and infrastructure, as they exist for the six (6) month period prior to the Distribution Date per the existing CAG/Parent vendor management process Prior to expiration, CAG/Parent will inform LW/Spinco of any contractual or time sensitive expiration of agreements Coordinate with 3rd party vendors contracted or retained by CAG/Parent to provide support and resolve issues for shared applications and infrastructure If CAG/Parent Suppliers do not extend software usage rights or transfer rights beyond what is in CAG/Parents suppliers contracts, LW/Spinco will be responsible to secure their own licenses and / or agree to pay CAG/Parent for any incremental costs associated with extended usage rights and / or transfer rights to LW/Spinco. LW/Spinco must adhere to CAG/Parent suppliers software license agreement terms and conditions. In the event of any non-compliance by LW/Spinco that results in increased fees or penalties to CAG/Parent, LW/Spinco will be responsible for the costs. |
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1.4.2 |
TSA IT Billing Support | |||||||||||||||
CAG/Parent will bill all IT related expenses and provide line item detail of all billable expenses to LW/Spinco on a monthly basis LW/Spinco will notify CAG/Parent plans for application or infrastructure contract exits and planned TSA reductions |
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TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 15 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
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TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
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2.0 Global Business Services (GBS) | ||||||||||
2.1 Accounts Payable * | ||||||||||
2.1.1 |
Travel Card Processing
For PeopleSoft-supported (Workday after 1/1/17) Lamb Weston employees based on ConAgra Concur configuration and ConAgra T&E policy Reviewing and processing T&E expense reports Support providing data for monthly processing out-of-pocket reimbursements Conducting sample audits T&E reports Performing T&E Concur maintenance Assist employees with Bank account discrepancies Cancel Bank account for terminated employees Track receipt of amounts and reports due from employees T&E Monitor terminated employee final expense reports |
$2,200 | 12 months |
Quarterly
Transition Review |
Daily T&E report support and monthly audits |
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2.2 Data Management Organization * | ||||||||||
2.2.1 |
Day to Day Support of Data * (extendable until 2/28/18)
Daily Support of Data Operations Process the creation and maintenance of vendor and indirect material master data records Process Remedy tickets for vendor and indirect material requests Support cVend and cMat workflow processes and tools Maintain roles within cVend and cMat to ensure workflow tasks can be processed Troubleshoot master data issues as needed |
$6,500 | 12 Months |
Quarterly
Transition Review |
Create and maintain the following items daily:
Vendor master data Indirect Material master data
Daily reconciliation of remedy queues |
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TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
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2.2.2 |
1WorldSync Contract Pass-through of Lamb Westons portion of the 1WorldSync contract remaining in calendar 2016; continuation into 2017 as needed |
$5,600 /
month |
12 Months | 30 days | ||||||
2.2.3 |
Data Management Transition Project Support (if applicable) Support project plan and Lamb Weston resources Support project tasks, and raise issues and expedite when applicable |
Hourly rate
dependent on skill level needed ($75/hr) |
12 Months |
Quarterly
Transition Review |
TBD. General per hour charges will range $55 to $75 per hour. | |||||
2.3 Global Business Services COE |
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2.3.1 |
COE Support for Financial Planning &Analysis Services * (extendable through 2/28/18)
Salary Planning Tool Maintenance Maintenance of SG&A Reporting tables |
$75/hr | 12 Months |
Quarterly
Transition Review |
Prepare and populate salary planning tool with updated census data and enterprise assumptions; maintain SG&A reporting versions and tables |
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TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
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3.0 Human Resources Support (not extendable) | ||||||||||||||||
3.1 Benefits Administration Support (US / Canada / Puerto Rico) | ||||||||||||||||
Through 12/31/2016: Eligibility to continue participation in ConAgra/Parents Health and Welfare programs as currently enrolled. Health and Welfare programs are defined as Medical, Dental, FSA, Dental, Vision, Prescription, Employee Assistance, Castlight, StayWell, Dependent Care FSA Plans, Retiree Medical Wellness (e.g. SimplyWell) participation as it exists in 2016 Eligibility to continue participation in AD&D, Insurance, STD/LTD subject to approval by Benefits carriers, including confirmation by Life and LTD benefits carrier that these items remain fully insured for existing employees as well as coverage status for new hires through 12/31/16 Eligibility for continued participation in CRISP/401k (up to 12 months) Continuation of 2016 Voluntary Deferred Compensation and Directors Deferred Compensation programs including enrollment for 2017 plan year Support 2017 Benefits Open Enrollment consistent with existing ConAgra process and approach Claims processing and settlement |
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$37,500
per month plus pass through of allocable enterprise program costs (30%) and direct claims costs. Such claims may trail up to one year. |
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Through
12/31/16 |
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|
30 days written
notice
Except for
|
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Consistent with service levels provided to the business in the six months prior to spin | ||||||
From 1/1/2017 through 12 months from Distribution Date: Continuation of Benefits Administration within Workday until tenant split: Assumes separation of contracts, billing and settlement procedures are in place with benefits providers under new vendor agreements direct with LW Eligibility for continued participation in CRISP/401k Support 401k plan-to-plan transfer at termination of TSA Processing and settlement of trailing claims incurred between date of spin and 12/31/16. Complex claims may trail one year or longer. |
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$15,000
per month plus pass through of allocable enterprise program costs (30%) LW to process direct claims costs. |
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Up to 12
months from Distribution Date |
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Page 19 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 20 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
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Unemployment Administration current practices and procedures using existing 3 rd party Payroll processing support for CAG Voluntary Deferred Compensation and Directors Deferred Compensation programs (through 12/31/16) Payroll processing support for LW Voluntary Deferred Compensation and Directors Deferred Compensation programs (beginning 1/1/17) Scope of the Payroll, Payroll Tax and timekeeping service initially includes US, Puerto Rico and Canada (8 Sales employees). On January 1, 2017, the scope will increase to include LW Canadian operations as part of the Workday system implementation.) |
||||||||||||||||
3.2.2 |
Timekeeping (IT/Kronos interdependency) US: continue time and attendance services through Kronos and payroll system (PeopleSoft until 12/31/16 / Workday beginning 1/1/17) Canada: establish time and attendance services utilizing Kronos beginning 1/1/17. IT and HR project to be activated pre-spin |
See above 3.2.1 | Process time and attendance for US and CAN (one plant - Taber) weekly/biweekly | |||||||||||||
3.3 People Data Management and Other HR Admin Services | ||||||||||||||||
3.3.1 |
People Data Management and other HR Admin Updating, maintaining employee data on the HRIS or system of record including changes of status etc. aligning with current practices and procedures Tracking and reporting of Contingent workforce data, including compliance status checks and system access compliance Processing and managing the transfer of staff from one service area, business line or facility to another Facilitate car mileage for payroll processing where applicable, consistent with existing practices [This process is managed by Treasury/Dae DiCenzo today] Generate required reports to government and federal agencies. For example, fair hiring practice reports or government mandated training classes Lead and coordinate the user testing of Workday HRIS/HR Application system until LW tenant split occurs I9 administration through LW tenant split (or sooner, if a separate LW I9 system is established (after 1/1/2017)) ACA administration for calendar year 2016 |
|
Included in
census based charge for 3.2, Payroll |
|
12 months |
|
30 days written
notice
Except
for
|
|
Support HR administration for transactions daily
Provide Level 1 HR system support (Payroll, HR and Benefits) daily |
Page 21 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||
3.3.2 |
Security Access Administration: Employee to Contractor conversion for continued systems access * (extendable through 2/28/18) Conversion and administration of employee records in HRES/Workday to maintain system access with CAG/Parent systems for the full duration of the TSA |
$10,000
per month after payroll termination |
Through
February 28, 2018, consistent with IT duration |
NA
required for the full TSA duration unless all services are terminated |
Convert and maintain user IDs and systems security access after LW/Spincos independent HRIS conversion | |||||
3.3.2.5 |
TSA/Transition Training : requires sufficient headcount / people resources on board no later than 3/1/17 to begin transitional work (e.g. Benefits Administration, HRIS) |
$80 per
hour plus materials and travel |
See above
3.3.1 |
|||||||
3.3.3 |
Learning and Development Manage existing Alchemy instance and HRIS linkage Continue plant safety learning and development programs (see IT TSA for associated IT costs) [after split, LW will need a new interface from Alchemy] |
$3,000 /
month for
|
12
months (dependent on Workday tenant split) |
30 days | Scope includes existing services only. Can be independently terminated if WD interface is deemed unnecessary | |||||
3.3.4 |
Additional Services - Success Factors: Access to Success Factors data through 1/1/17 (end of CAG SF contract) Talent Management and Advanced Comp capabilities are included in the scope of Workday project. (hence the tenant split date 10/17) |
$2,500 /
month |
Through
1/31/17 |
NA | ||||||
3.3.5 |
Additional Services Relocation: Administration of any in-process or new LW Spinco relocations to the extent of charges incurred in calendar 2016. Knowledge/information transfer to facilitate transition of Relocation Administration to LW under a new, separate Sirva contract. |
Pass
through of direct vendor fees . |
Through
12/31/16 |
NA | ||||||
3.3.6 |
Additional Services Project Work (time and materials) Additional requests for mutually agreed services outside above scope of services (e.g. data interfaces) To be defined: Project plan related to tenant split, costs of WD tenant split carried by LW post spin |
$100 / hr
project work 1 plus pass through of direct costs |
See above
3.3.1 |
Page 22 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 23 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 24 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||
5.1.2 |
On-line compliance support * Safety Data Sheet storage Site Hawk (SDS) likely done by Distribution Date; included as part of IT TSA Management of DOT regulated vehicles (tractor / trailer drivers) (as permitted by law) |
|||||||||
5.1.3 |
Other * Sustainable Development Reporting Tool SDRT (in SAP) Lockout Pro - no application cost; duplicate from CAG and transfer to new LW servers |
|||||||||
5.1.4 |
Training Alchemy System plus subscription as a pass through |
$75 / hr
1
plus subscription pass through |
6 months | |||||||
5.1.5 |
Security Supplier Audits to support C-TPAT |
$90 / hr
plus travel |
TBD | TBD | ||||||
5.1.6 |
Department of Homeland Security Chemical audit process |
$90 / hr
plus travel |
TBD | TBD | ||||||
6.0 Research and Development Workflow Support | ||||||||||
6.1 |
Food Safety Auditing * Internal Facility Audits |
Hourly
rate plus travel |
3 months | 30 days |
David Melton CAG provider of LW current and historical audit Data. Chris R.& Todd Badgley LW Points. Train for 1 or two Audit shadows: Training from David Melton to new LW manager Food Protection Audit. (confirmed) |
Page 25 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||
6.2 |
Product Development Access to Subject Matter Experts * Microbiological consulting for Foods Safety issues |
Hourly
rate based on position |
6 months | 30 days |
DeAnn Akins-Lewenthal CAG contact. Chris R. Todd Badgley LW. External consultive industry benchmarking, Participate in one onboarding discussion with New Principal Microbiologist LW (confirmed) |
|||||
6.3 |
Packaging * Access to Packaging Dynamics lab Access to Packaging Subject Matter Experts |
Hourly
rate based on position |
6 months | 30 days | Limited use with advance notice. Do not estimate more 4 service requests, Eric Sinz CAG contact, Kim Williams LW point. (confirmed) | |||||
6.4 |
Supplier Quality- Domestic * Consultation support for establishing new LW function Training / procedural awareness of new hire for LW |
Hourly
rate based on position plus pass- through of travel expenses |
6 months | 30 days |
Penny Mack CAG and New Manager Food Protection, Supplier compliance for LW Current Contacts Chris R and Todd Badgley. Supplier Risk Ranking data and process as well as all supplier quality practices reference documentation. Training only no new audits to be done by CAG for LW |
|||||
6.5 |
Supplier Quality International * Consultation support for establishing new LW function Information Sharing on all external International provider companies Access to SAI for global services for BRC/GFSI audits |
Hourly
rate based on position plus pass- through of travel expenses |
12 months | 30 days |
Work with Joseph Elrefaie Chris Fosse to be informed, Chris Rhynalds and Horst Ellendt For LW (Work in process) |
Page 26 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||
6.6 |
Consumer Affairs Support Retail, GBU, MBU and Foodservice * Resources to maintain call center and escalation process Astute reporting and data extracts LW specific 800# - assigned |
$2,500 /
month |
7 months | 30 days |
Work with Leslie Skybo CAG contact, Horst Ellendt LW and Jim Neavill (Work in process) |
|||||
6.7 |
Retail heating (cooking) validation studies for packaging development * |
Hourly
rate based on position |
6 months | 30 days |
20 products to validate Lea Anne Dea =CAG provider Ghislaine Joly LW contact (Confirmed) |
|||||
6.8 |
Sample Manager Access / Microbiological * Support for Sample Manager program IT Systems and Microbiological technical support. |
Hourly
Rate based
|
6 months | 30 days |
Greg Shuett IT system support Kari Sweeney business application support Dawn Vaadeland LW IT transitional support. Todd Badgley LW Point until new Principal microbiologist hired. (confirmed) |
|||||
6.9 |
Foreign Material Analysis Retail * (extendable up to 3 months) CAG forensic analysis for Retail FM Complaints |
Hourly
Rate |
3 months
Only until
|
30 days |
Eric Brown CAG provider Jeff Nelson LW point (FM Lab) Russell Jones Retail product Quality LW (confirmed) |
|||||
7.0 Marketing Support | ||||||||||
7.1 |
Coupon Clearinghouse * Pending vendor consent, continued support of coupon processing and redemption for a run-out period (to be determined based on activity levels) |
$500 per
month plus coupon redemption costs |
12 months | 30 days | Consistent with the six (6) month period up to and including the Distribution Date and interdependent with vendor contract assignment negotiation |
Page 27 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||
8.0 Corporate Controllers Group |
||||||||||
8.1 |
Financial Accounting Services * (extendable through 2/28/18) Managing period-end close schedule and processes in the SAP ledger system including journal entry processing and account reconciliations as specified. General Ledger maintenance including updating chart of accounts, maintaining currency rates, translation tables, and accounting periods, and mapping and loads to ASI and BPC. Currency revaluation/translation processing and posting, as applicable Provide data in support of transition to new general ledger systems, as required. Monthly accounting transactions (e.g., Concur accruals, IR no GR Report Processes (GRIR), Cash Settlement Processes) Reconciliation of all cash accounts support TBD TSA billing, weekly remittance administration and reconciliation |
$21,600 | 12 months | TBD in transition planning (e.g. closing schedule and fiscal period alignment) | ||||||
8.2 |
Fixed Assets Management * (extendable through 2/28/18) Complete Fixed Asset system maintenance Capitalize, retire, transfer of assets in FA system Set up project number (p-value) based on approved Capital Investment Request (CIR). Provide access to Fixed Asset and Capital Management related reporting Verify monthly depreciation interfaces with ASI Provide Tax with PP&E-related information and prepare tax package for yearend tax return Set-up assets for new company (Question on this regarding the implications to existing processing in SAP in particular) New company to provide authorized capital transfer, impairment, divestment (CTID) request form to CCG for processing New company to send project completion notice to CCG Capitalize and categorize assets for new company New company to provided information from periodic physical inventory of capital assets New company to provide idle asset listing to CCG quarterly Provide new company with data extracts required for conversion to new systems, as needed. |
$2,700 | 12 months |
Page 28 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||
8.3 |
Property Tax, Insurance & Loss Support Prepare real estate/personal property tax packages for Corporate Tax Approve and code invoices/payment requests related to real estate and personal property returns Determine and accrue real and personal property taxes |
$2,700 | 12 months | |||||||
8.4 |
Finance-related payroll support interlinked with PeopleSoft/Workday / Payroll service 3.2.1 Execution of existing financial accounting processes associated with payroll processing Generate weekly payroll funding wire invoice and supporting documentation |
$5,400 | 12 months | |||||||
8.5.1 |
International Finance Support - CCG Financial Reporting Support for International Regulatory Filings Access to and transfer of historical data Transactional accounting support consistent with historical scope and practices Scope includes Netherlands, Hong Kong, Australia, Columbia, Panama, Puerto Rico and Mauritius Pass-through of country-relevant TMF Global direct charges |
$2,700 plus
pass- through of direct costs (TMF) |
3 months | |||||||
8.5.2 |
Ad hoc CCG International Finance Support Ad hoc support as mutually agreed after 8.5.1 terminates |
$85 / hr |
Month 4-6
after spin |
|||||||
8.6 |
Additional financial services or ad hoc projects to be negotiated on a flat rate or hourly rate basis, based on availability of resources. | 12 months | ||||||||
8.7 |
Corporate FP&A Support | $85 / hr | 12 months | |||||||
8.8 |
International Finance Support - Mexico BPCS Transactional support including AR, AP Inventory accounting, reserve management and reconciliations Execute period close Administer cash remit and reconciliations Due To / Due From reconciliation related to Mexico transactions |
$15,400 | 12 months | 30 days | ||||||
8.9 |
Internal Audit Hosting Q2 FY17 SOX certification room (not extendable) |
Pass-
through direct costs |
One time | NA |
Page 29 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||
9.0 Treasury Services (Treasury, Fleet, Credit, Insurance and Real Estate) | ||||||||||
9.1 |
Cash Management Provide the following data for Cash Management processes: Bank Relationship Management: monthly bank fees sent from bank on account analysis statements Bank Accounts: maintain bank accounts listing, signers and documentation via. Excel spreadsheet Cash Positioning and Forecasting: bank balance data by legal entity in U.S., Canada and Mexico only, prior day and intraday bank balances where applicable, Transaction level detail by transaction type (e.g., investments, confirmed/unconfirmed trades, etc.) Provide support/resources for the following Cash Management processes Daily cash positioning Cash flow forecasting physical cash in bank accounts for U.S., Canada and Mexico only Transaction confirmation / settlement Manage / track interest and principal repayments Opening and closing of bank accounts Manage bank portals Cash flow forecasting Manage I/C loans, LE funding Execute external treasury payments (ACHs, wires) |
$2,250
plus pass- through of direct 3 rd party costs |
3 months | 30 days | ||||||
9.2 |
Treasury Systems: SAP Treasury Cash Management and bank portals: Scope of services include: Treasury support for initial set-up and testing (as well as ongoing testing based on SAP system change requirements or service packs) of separate SAP cash management role, LW Co Code specific TRM0, bank websites, training of new LW Treasury staff, the dual control aspect for execution of an ACH/Wire/FX transaction through the SAP Treasury module or banking websites, as well as monitoring and troubleshooting the daily BAI II file & ACH/Wire bank confirm levels 1, 2 &/or 3 to ensure bank account activity is imported into the general ledger. |
$110 per
hour |
12
months |
30 days |
Page 30 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||||||||
Wire Vendors & Rep Line Setup: Provide cVend business process support in setting up new AP wire vendors as well as modification of existing wires, deleting or adding new repetitive wires using BP and OT81 and daily monitoring of bank files and confirmations.) |
||||||||||||||||
9.3 |
Interim Treasurer Support Provide one existing employee to serve in an interim leadership role for SpinCo Treasury Services in order to provide SpinCo with additional time to find a qualified person to fill the position of SpinCo Treasurer. Employee takes all direction solely from SpinCo management in provision of Treasury Services. Employee has duties and responsibilities solely with respect to the LW Business and for members of the LW Group. Employee has no duties or responsibilities with respect to the Consumer Foods Business or for any member of the ConAgra Group. Charges for this service are based on pass-through of the existing employees direct costs including salary, pro-rata share of incentives, benefits, employer taxes, and reasonable travel. |
|
Pass
through of employees direct costs including salary, incentives, benefits, claims and travel |
|
3 months | NA | ||||||||||
9.3 |
Light Fleet Vehicle Program: Manage company light fleet vehicle program with Wheels, Inc. Scope of services include CAG Treasury support for initial set-up and testing of two new client IDs (U.S. ~369 vehicles & Canada ~15 vehicles), transferring existing vehicles on the Wheels program prior to close into the new LW program after Spin close, managing relationship with Wheels, Inc. to ensure all assigned drivers and farm/plant locations with pool vehicles receive updated titles & registration, new insurance and fuel cards etc., while maintaining the daily approvals and monitoring of vehicle accidents, maintenance & fuel use. Provide Maintenance Service agreement data Provide support resources to review and approve Maintenance Services Agreement |
|
$2,600 /
month plus pass- through of direct 3 rd party costs |
|
3 months | 30 days |
Page 31 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||||||
9.4 |
Credit Services: Provide support/resources for the Credit Check process Assist in workflow of credit apps and phone training as needed. Scope of services include training LW collections group to implement a best in class credit and risk mitigation department. Transition of the credit responsibilities to LW where they have the tools, recommended procedures, and training to absorb these additional responsibilities. |
$110 /
hour |
3 month | NA | ||||||||||
9.5 |
Insurance Assist in claims activity Transition business continuity plans and processes |
$110 /
hour |
3 month | NA | ||||||||||
9.6 |
Risk Assist in Risk Management functions (systems functionality, not management decisions) Assist with systems maintenance Assist in first quarterly reporting flows |
$110 /
hour |
3 month | NA | ||||||||||
10.0 Corporate Tax | ||||||||||||||
10.1 Sales & Use Tax | ||||||||||||||
10.1.1 |
State and Local Sales/Use Tax Return Support Providing Vertex access (In Appendix 1, LW IT Gold Application list) |
Charged
in IT |
||||||||||||
10.2 1099s |
||||||||||||||
10.2.1 |
1099 Forms Preparation of 1099 forms for calendar 2016 |
TBD | TBD | TBD |
Page 32 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 33 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
ID |
Description of Service (Extendable Services as defined in the
TSA
|
Cost (per
month exc.noted) |
Duration |
Required Notice
for Early Term i nation |
Service Levels |
|||||
11.2 |
Real Estate & Facilities: Provide support/resources to assist in the approval or negotiation of additional build out and leases. Assist in completion of build out projects in Kennewick and Eagle, Continuation of McMunnis lease payment processing if needed |
$110 /
hour plus pass- through of direct costs and travel |
6 months | NA | ||||||
12.0 TSA Program Management | ||||||||||
12.1 |
Program Management and Project Planning * (extension required to coincide with end date of longest duration service) Program Management resources to manage transition projects and resource coordination with LW/Spincos transition team Steering governance |
$10,000
/ month |
12
months |
NA | PMO support for TSA Functions (IT, HR, SC, Finance and overall TSA) |
Page 34 |
TSA Annex B Appendices | ||||||||||||||
Transition Services Agreement Schedule of Services |
12.1 Appendix 1: LW Gold Application List
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application -Infrastructure | Carbon Black Endpoint Protection | TSA | None | |||||
Application | Lockout Pro Enterprise | TSA | None | |||||
Application | Line Events Data System (LEDS) | TSA | None | Pass Thru | ||||
Application | AMAG Badge Security System | TSA | None | |||||
Application | Kronos Workforce Central v 7 | TSA | Logically separate | |||||
Application | Kronos Workforce Central v5.1.22.808 | TSA | None | Pass Thru | ||||
Application | Kronos Enterprise - v5.0.5 (Clocks) | TSA | None | |||||
Application | Workday (628k/annually) | TSA | None | |||||
Application | Intelex | TSA | None | |||||
Application-Infrastructure | BMC Control-M 7.0 | TSA | None | Fixed | ||||
Application-Infrastructure | Incident Management/Remedy Service Now | TSA | None | |||||
Application-Infrastructure | BMC Patrol 7.6 | TSA | None | |||||
Application-Infrastructure | BMC Analytics 4.0 | TSA | None | |||||
Application | IBM EDI VAN replacement of GIS (Gentran Integration Suite) | TSA | None | |||||
Application | ExtendAg/Gradestar | Independent | None | |||||
Application | Decernis | Independent | None |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 36 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application-Infrastructure | WinZip 14.5 | Independent | None | |||||
Infrastructure | SMS 3rd Party Network Support | Independent | None | |||||
Infrastructure | All Data Line & Internet Charges - AT&T | TSA | None | |||||
Infrastructure | Cerium | TSA | None | |||||
Application | LW Sales Discovery System (SDS) | Independent | None | |||||
Application | 1 EDI source | Independent | None | |||||
Application | Conga | Independent | None | |||||
Application | BMI | Independent | None | |||||
Infrastructure | High Speed Scanner | Independent | None | |||||
Application | Maximo 7 - v7.1.18 | Independent | None | |||||
Application | Maximo 4.1.1 | Independent | None | |||||
Application | Minitab | TSA | None | |||||
Application | SAS | Independent | None | |||||
Application | Amphire / ITrade | Independent | None | |||||
Application | Mercer Pension | TSA | None | |||||
Application | SiteHawk MSDS Solution | TSA |
Separate
Contract/License |
Fixed | ||||
Application | BPCS (Intl - Mexico) | TSA | None | |||||
Application | Descartes | Independent | None | |||||
Application-Infrastructure | Xcel | Independent | None | |||||
Application-Infrastructure | VSE | Independent | None | |||||
Application-Infrastructure | Syncsort | Independent | None | |||||
Application | Sample Manager v 10.0 | TSA | None | Fixed | ||||
Application | PFM (Professional Flight Management) | Independent | Extract Data |
Page 37 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Page 38 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application | Managed Service - Application | TSA | None | Fixed | ||||
Infrastructure | Managed Service - Infrastructure | TSA | None | |||||
Infrastructure | Managed Service - Security | TSA | None | |||||
Application-Infrastructure | Corel Video Studio Pro | TSA | None | |||||
Application | Microsoft Dynamics AX - App | TSA | None | |||||
Application-Infrastructure | SharePoint 2007 | TSA | None | |||||
Application-Infrastructure | SharePoint 2010 | TSA | None | |||||
Application-Infrastructure | Software - Office 365 | TSA | None | |||||
Infrastructure | LDAP/Active Directory | TSA | None | |||||
Application-Infrastructure | Cafe Portal | TSA | Follow Up | |||||
Application | SAP - Financial Accounting (FI) v6.0 EHP6 | TSA | Logically separate | Fixed | ||||
Application | ACL | Remove | None | |||||
Application | ADP | Independent | None | |||||
Application | Guardian Electronic I9 | Independent | None | |||||
Application | DTM3 - Alarm Lock | Independent | None | |||||
Application | Lamb-Weston ASI | Independent | None | |||||
Application | Sapphire v4.3 | Remove | Extract Data | |||||
Application-Infrastructure | TMON | Independent | None | |||||
Application | Avanti | Independent | None | |||||
Application-Infrastructure | SMS Launcher | Independent | None | |||||
Application-Infrastructure | BlueBeam PDF Revu | Independent | None | |||||
Application | Lockout Pro | Independent | None |
Page 39 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application | Chesapeake Unclaimed Property Compliance System | Remove | None | |||||
Application | Infofinder | Remove | Extract Data | |||||
Application | SAP - BW - Business Warehouse | TSA | Logically separate | |||||
Application | My Recipe - SuccessFactors | TSA | None | Fixed | ||||
Application | SAP - ALM | TSA | None | |||||
Application | Attendance | Independent | none | |||||
Application | Bill of Materials | Independent | None | |||||
Application | Budgeting - Account Management System (AMS) | Independent | Testing Required | |||||
Application | Employee Engagement Tracking | Independent | None | |||||
Application | Employee Kiosk | Independent | None | |||||
Application | Grower Accounting | Independent | None | |||||
Application | Grower Portal | Independent | None | |||||
Application | Local HRMS/Payroll | Independent | None | |||||
Application | LW Earth | Independent | None | |||||
Application | Manifest Application Suite | Independent | None | |||||
Application | Overtime Signup | Independent | None | |||||
Application | Pack Plan | Independent | None | |||||
Application | Park Rapids Grade Load | Independent | None | |||||
Application | Park Rapids Grower Accounting | Independent | None | |||||
Application | Park Rapids Scale Tickets | Independent | None | |||||
Application | Quality Assurance Application Suite | Independent | None | |||||
Application | Raw Grading (Management) | Independent | None | |||||
Application | Shift Reporting (OEE) | Independent | None | |||||
Application | Taber Grading | Independent | None | |||||
Application | Taber Grower Accounting | Independent | None |
Page 40 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application | Training Tracking | Independent | None | |||||
Application | Unit Cost | Independent | None | |||||
Application | USDA Grading | Independent | None | |||||
Application | SAP - AP/Treasury | TSA | Logically separate | |||||
Application | CIR - Workflow Internally Developed | Remove | Extract Data | |||||
Application | Agrep / grep | Independent | None | |||||
Application | SAP - BOBJ Crystal Reports XI R2 | TSA | Logically separate | |||||
Application | SAP - BOBJ Webi 4.0 | TSA | Logically separate | |||||
Infrastructure | Continuant | Remove | None | |||||
Application | Corp Tax | Remove | None | |||||
Application-Infrastructure | Dell\Quest - Foglight/Spotlight - Performance Analysis for SQL | Independent | None | |||||
Application | DS Collaborate - 7.6 | Independent | None | |||||
Application | DSFM - Demand Solutions Forecast Management - 9.7 | Independent | None | |||||
Application | DSRP - Demand Solutions Requirements Planning - 9.7 | Independent | None | |||||
Application | Demand Solutions Forecast Management (DSFM) and Demand Solutions Replenishment (DSRP) - v 12 | Independent | None | |||||
Application | Enwisen OffBoarding - v1.0 | Remove | None | |||||
Application | Enwisen OnBoarding - v4.5 | Remove | None | |||||
Application | Enwisen Total Rewards Statement - v4.0 | Remove | None | |||||
Application | Visual Importer | Independent | None | |||||
Application | Processor Link - Fidelis | Independent | None | |||||
Application | SAP - Business Planning & Consolidation (BPC) v 7.5 | TSA | Logically separate | |||||
Application | Idera - SQL Admin Toolset | Independent | None | |||||
Application | SAP - CPM | TSA | Logically separate |
Page 41 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application | SAP - Data Services | TSA | Logically separate | |||||
Application | SAP - Linkup (Local Check Printing) | TSA | Logically separate | |||||
Application | SAP - MRS Multi Resource Scheduling (MRS) | TSA | None | |||||
Application | SAP - Project Systems/Fixed Assets | TSA | Logically Separate | |||||
Application-Infrastructure | Snag IT | Independent | None | |||||
Application | Secure File Transfer (IPSwitch ws_ftp 12 Professional) | Independent | None | |||||
Application | Edge Chemical Dispensor | Independent | None | |||||
Application | Witness Simulation Software | Independent | None | |||||
Application | LW Colos | Independent | None | |||||
Application | Markem Coders | Independent | None | |||||
Application | SAP - SolMan - Solution Manager | TSA | None | |||||
Application | Visual FoxPro | Independent | None | |||||
Application-Infrastructure | Microsoft Project | Independent | None | |||||
Application-Infrastructure | Microsoft Visio 2010 | Independent | None | |||||
Application-Infrastructure | Microsoft Visual SourceSafe 2005 | Independent | None | |||||
Application | SAP - TREX - NetWeaver Search and Classification | TSA | None | |||||
Application | Managed Service - BPCS (Intl - Mexico) | TSA | None | |||||
Application-Infrastructure | Software - Office 2010 | Independent | None | |||||
Application-Infrastructure | Software - Office 2013 | Independent | None | |||||
Infrastructure |
CONTRACTED LABOR-LW Mainframe Support (InfoSys) |
TSA | None | |||||
Application-Infrastructure | SQL Server Management Studio | Independent | None |
Page 42 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application-Infrastructure | SSAS - SQL Server Analysis Services 2005, 2008, 2012, 2014 | Independent | None | |||||
Application-Infrastructure | SSIS - SQL Server Integration Services 2008 | Independent | None | |||||
Application-Infrastructure | SSRS - SQL Server Reporting Services 2008 | Independent | None | |||||
Application-Infrastructure | Windows SharePoint Services 3.0 | Independent | None | |||||
Application-Infrastructure | Yammer | Remove | Remove LW users | |||||
Infrastructure | Microsoft Azure (Lamb-China) - included in MS EA | Independent | None | |||||
Infrastructure | Microsoft Reporting Services (SSRS) 2008 | Independent | None | |||||
Infrastructure | Network Cost for Infrastructure as a Service (IaaS) | Independent | None | |||||
Application | NetDocuments | Remove | None | |||||
Application | Phoenix Fuel | Independent | None | |||||
Application | Pentaware (PentaSuite) | Independent | None | |||||
Application | Ariba eProcurement | Remove | None | |||||
Application | Ariba eSourcing - SaaS | Remove | None | |||||
Application | SAP - BOBJ Dashboards 4.0 | Remove | Logically separate | |||||
Application | SAP - Xcelsius | Remove | Logically separate | |||||
Application | ScheduleSoft-Lamb Weston | Independent | None | |||||
Application | Send Word Now | Remove | None | |||||
Application | Portfolio Management (Accolade) | Remove | Extract Data | |||||
Application-Infrastructure | Hyena | Remove | None | |||||
Application | SYSTRAN | Independent | None | |||||
Application | Tibersoft | Independent | None | |||||
Application | TimeTrak 10 - timekeeping & scheduling | Independent | None |
Page 43 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application | TopsPro | Independent | None | |||||
Application | Tugboat/SOS | Independent | None | |||||
Application | Dairy Comp | Independent | None | |||||
Application | MEI - LW | Independent | None | |||||
Application | Vertex Returns | Remove | None | |||||
Application | Vertex Sales Tax Calculator | Remove | None | |||||
Application-Infrastructure | VMWare Horizon Client | Remove | None | |||||
Application | WinShuttle | Remove | None | |||||
Application | XiBuy | Remove | None | |||||
Application | Teammate | Remove | None | |||||
Application | Zeus for Windows | Independent | None | |||||
Application | CONTRACTED LABOR-Future SAP Ecosystem Support | Independent | None | |||||
Application | SAP - ECC Carve Out - SLO | Independent | None | |||||
Infrastructure | Cloud Services | Independent | None | |||||
Infrastructure | Storage Compute On Prem for Future SAP Ecosystem | Independent | None | |||||
Infrastructure | Cloud Support for ERP - dup | Independent | None | |||||
Application | CONTRACTED LABOR-ASI Staff Aug/SME Legacy Support (T) | Independent | None | |||||
Application | CONTRACTED LABOR-LW Legacy Manufacturing Support (Bill) | Independent | None | |||||
Application | CONTRACTED LABOR-LW Production Support (Bill) | Independent | None | |||||
Application-Infrastructure | Security Implementation | Independent | None | |||||
Infrastructure | Help Desk - Tier Point Outsourced | Independent | None | |||||
Infrastructure | Network/Route/Switch/FireWall | Independent | None | |||||
Infrastructure | EUC (AppV, SCCM) | Independent | None |
Page 44 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Infrastructure | CONTRACTED LABOR-LW Mainframe Support (TCS) | Independent | None | |||||
Infrastructure | Backup Solution | Independent | None | |||||
Infrastructure | Storage Compute On Prem | Independent | None | |||||
Infrastructure | Email/O365 | Independent | None | |||||
Infrastructure | CONTRACTED LABOR-LW Mainframe Support (Sirius) | Independent | None | |||||
Infrastructure | BPCS AS400 (Intl - Mexico) | Independent | None | |||||
Infrastructure | Servers (File/Print) (Intl-Mexico) | Independent | None | |||||
Infrastructure | AS400 Robot (Intl-Mexico) | Independent | None | |||||
Application | cVend\cMat | TSA | None | |||||
Application-Infrastructure | Solera DeepSee (Blue Coat SAP Appliance) | TSA | None | |||||
Application | Convey | TSA | None | Fixed | ||||
Application | Enwisen - Answersource | TSA | None | Fixed | ||||
Application | Workplace | TSA | None | |||||
Application | Kronos 5.2 HTML | TSA | None | |||||
Application | PeopleSoft HR | TSA | None | Fixed | ||||
Application | SimplyWell | TSA | None | |||||
Application-Infrastructure | Dameware Mini Remote | TSA | None | |||||
Application | Vertex Sales Indirect Tax O Series | TSA | None | Fixed | ||||
Application | Vertex Rate Locator 6.0.5.6.1 | TSA | None | |||||
Application | Visier | TSA | None | |||||
Application | GLSU (General Ledger Spreadsheet Uploader) 4.1 | TSA | Logically separate | Fixed | ||||
Application | Quest Stat | Independent | None | |||||
Application | HR: Payroll - PayMatch Maintenance | Independent | None | |||||
Application | PTMS (Property Tax Management System) | Independent | None |
Page 45 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application | Certification (aka AssureNet or CAE) 2.1.0 | TSA | Logically separate | |||||
Application-Infrastructure | AppSense | TSA | None | |||||
Application | Astute ePowerCenter | TSA | Follow Up | Fixed | ||||
Application-Infrastructure | Jabber | TSA | None | |||||
Application | Concur | TSA | None | Fixed | ||||
Application-Infrastructure | Damballa Failsafe | TSA | None | |||||
Application | e.CaseTrack | TSA | None | Fixed | ||||
Application-Infrastructure | Cisco Stealthwatch (Lancope Network Monitoring) | TSA | None | |||||
Application-Infrastructure | Cyber-Ark 9 | TSA | None | |||||
Application-Infrastructure | FireEye HX (Mandiant host monitoring tools) | TSA | None | |||||
Application-Infrastructure | Firemon | TSA | None | |||||
Infrastructure | Web Proxying (Bluecoat) 5.4 | TSA | None | |||||
Infrastructure | Firewalls - Palo Alto VSX R67 | TSA | None | |||||
Application-Infrastructure | IBM QRadar | TSA | None | |||||
Application-Infrastructure | WebEx Audio | TSA | None | |||||
Infrastructure | Vendor Remote Access - RAP & Juniper for Vendor QID access | TSA | None | |||||
Application-Infrastructure | GigaMon Network Taps | TSA | None | |||||
Infrastructure | Riverbed HW Maintenance | TSA | None | |||||
Application-Infrastructure | Forensics Software | TSA | None |
Page 46 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application-Infrastructure | FireEye NX | TSA | None | |||||
Application-Infrastructure | Nessus Vulnerability | TSA | None | |||||
Application-Infrastructure | Resilient | TSA | None | |||||
Infrastructure | Load Balancers 2.14.04DL | TSA | None | |||||
Application | SAP - Global Trade Services (GTS) | TSA | None | Fixed | ||||
Infrastructure | Cisco SmartNet - AV 9.3 | TSA | None | |||||
Infrastructure | Tangoes Telecom Expense Management (TEM) service | TSA | None | |||||
Application | Lease Analysis | Independent | None | |||||
Application | EDIX (Intl - Mexico) | TSA | None | Fixed | ||||
Application | AutoCAD Plant Design Suite Ultimate | Independent | None | |||||
Application | AutoDesk NavisWorks Freedom | Independent | None | |||||
Application-Infrastructure | Solarwinds | TSA | None | |||||
Application-Infrastructure | WebEx | TSA | None | |||||
Application-Infrastructure | Adobe Products | Independent | None | |||||
Infrastructure | AV/AVI (simple meeting rooms) | TSA | None | |||||
Application-Infrastructure | Cisco_Security_ELA | TSA | None | |||||
Infrastructure | Dell Software EA | TSA | None | |||||
Infrastructure | DR Mainframe (Hardware Support) | TSA | None | |||||
Infrastructure | Mainframe (Hardware Support) | TSA | None | |||||
Infrastructure | e911 | TSA | None | |||||
Infrastructure | Intrado e911 Server | TSA | None | |||||
Infrastructure | Cell Phones and Cell Cards - Verizon / Sprint / AT&T/ US Cellular | TSA | None |
Page 47 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
LW Gold Application List | ||||||||
RATIONALIZATION | ||||||||
Application Category |
Application Description |
Day 1 Status | Day 1 Work | TSA LW Fixed/Pass Thru | ||||
Application | AutoDesk Sketchbook Designer | Independent | None | |||||
Infrastructure | Telephony - 800, Audi Conf., LD, Local Charges Consolidated | TSA | None | |||||
Application | DWG TrueView | Independent | None | |||||
Infrastructure | Citrix | TSA | None | |||||
Infrastructure | Backup systems and Data Domains Symantec and EMC | TSA | None | |||||
Infrastructure | VMWare EA 5.5 | TSA | None | |||||
Infrastructure | Microsoft Enterprise Agreement (added 3/3/2016) | TSA | None | |||||
Infrastructure | Stratix contract - RF Device Motorola MC9190 (RF devices/Motorola) | TSA | None | |||||
Infrastructure | APC ISX Manager | TSA | None | |||||
Infrastructure | All Data Line & Internet Charges - Level 3 | Independent | None | |||||
Infrastructure | Cisco Call Manager Licenses | TSA | None | |||||
Application | MarkView | TSA |
Logically
separate |
Fixed | ||||
Application | Supplier Express | TSA | None | Fixed | ||||
Application | Synactive - ALM GuiXT | TSA | None | Fixed | ||||
Application-Infrastructure | Trend OfficeScan | TSA | None | |||||
Application | APR spend clarity tool | TSA | None | Fixed |
The parties agree that this list comprising Appendix 1, while lengthy, may not be 100% complete or accurate. As such, references to this Appendix 1 are understood to include all shared applications in use by the Business as of the six (6) month period up to and including the Distribution Date, whether or not specifically identified in this Appendix1.
* | To also include shared applications used by employees in support of LW/Spinco business operations but not referenced in Appendix 1. |
Page 48 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
12.3 Appendix 3: IT Labor Rate Card
Resource |
Rate | |||
Internal Resource |
$TBD / hr | |||
External Resource Onshore |
$TBD / hr | |||
External Resource Offshore |
$TBD / hr |
12.4 Appendix 4: IT Incident Management/Service Request Targets and SLAs - insert InfoSys SLA / service level matrix
The following is a list of service targets and SLAs that are implemented to aid in managing and monitoring incidents and service requests. The service targets drive the number and type of notifications sent to support groups and management when an incident is active. All Break fix / Production Support incidents must be logged in CAG/Parents central incident management tool.
How do service targets and SLAs work?
There are two main types of service targets: Response and Restoration.
| Response measures how fast an incident is accepted/acknowledged by the support group to which it is assigned. The response service target starts calculating when an incident is first assigned to a support group and stops calculating when the incident is assigned to an individual and the status is changed to In Progress. |
| Restoration how fast an incident is resolved by the support group. The restoration service target starts calculating when an incident is first assigned to a support group and stops when the incident is resolved. |
Service targets and SLAs are based on the priority and service type of an incident and generate certain notifications to keep support groups and the Service Desk informed on how an issue is progressing. There are three service types used in Incident Management: User Service Request, User Service Restoration, and Infrastructure Event.
| User Service Restoration - These are break/fix issues initiated by a user |
| Infrastructure Event - These are break/fix issues that are generated by a technical system such as Patrol or Control-M. |
| User Service Request - These are requests for something new such as having new software loaded on a computer or requesting a cell phone. |
The service type assigned to an incident is identified in the service type field located on the classification tab when viewing an incident in Remedy.
Page 49 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
The User Service Request and Infrastructure Event service types generate two service targets; one for response and one for restoration. The User Service Request service type generates one service target for response. Each target has its own goal which is displayed in the SLM tab. The goal is based on the priority of the incident which is outlined in detail below.
What Communications do Service Targets and SLAs Drive?
Service targets drive several communications in the form of pages and email depending on the priority. The specifics for each target are outlined in detail below.
Priority Weight Matrix
Priority is based on a selection of impact and urgency. The CAG/Parent determines and has the final determination of the severity of the incident, i.e. Critical/High/Medium/Low. The below weight matrix is administered behind the scenes in Remedy to enable the 5 base service targets:
Impact |
||||||||||||
Priority Weight |
Excessive/Widespread |
Significant/Large |
Moderate/Limited |
Minor/Localized |
||||||||
Matrix |
100 |
9 |
7 |
1 |
||||||||
Urgency |
Critical | 100 | Critical | High | High | High | ||||||
High | 50 | Critical | High | High | High | |||||||
Medium | 10 | Critical | Medium | Medium | Medium | |||||||
Low | 0 | Critical | Low | Low | Low |
Service Level Matrix
The Acknowledgement Response Time SLA represents the contractual commitment. Acknowledgement Response Time Expectations and the Service Restoration Expectations are considered a measure of user satisfaction. While these measures are not defined as measurable SLAs, the standard of performance is to be consistent with the six months up to and including the Spin.
Assigned Priority Level |
Acknowledgement Response Time SLA |
Service Restoration Expectations |
Priority Definition |
|||
Critical |
100% within 20 minutes 24x7 |
2 hours 24x7 | Significant operational business impact is already realized and immediate resolution is required to minimize effect of the incident | |||
High |
100% within 40 minutes 24x7 |
4 hours 24x7 | Business impact is imminent within 1-2 hours and expeditious resolution is required to avoid affecting business operations |
Page 50 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
Assigned Priority Level |
Acknowledgement Response Time SLA |
Service Restoration Expectations |
Priority Definition |
|||
Medium |
100% within 4 hours 24x7 |
8 hours 24x7 | Business impact is probable within 2-8 hours | |||
Low |
100% within 4 hours (M-F, 8-5pm) |
24 hours (M-F, 8-5pm) | Significant impact is unlikely to result within the next 8-24 hours. The issue should be addressed during normal business hours | |||
Service Requests |
100% within 8 hours (M-F, 8-5pm) |
90% completed successfully by mutually agreed upon date |
Page 51 |
TSA Annex B | ||||||||||||||
Transition Services Agreement Schedule of Services |
12.5 Appendix 5: TSA Governance
Services defined in this TSA shall be governed by a joint LW/Spinco and CAG/Parent Program Management Office. The TSA Board will be led by designated LW/Spinco and CAG/Parent resources that will collaboratively facilitate the governance process.
The TSA Governance Board will:
| Meet regularly (Biweekly initially) |
| Review scorecard of agreed upon metrics through the duration of the TSA |
| Serve as a point of escalation regarding services outlined in the schedule of services |
| Review TSA exit plans |
| Jointly review, approve and prioritize work requests |
| Resolve resource constraints in support approved work |
Parties will define in Transition Planning escalation protocols to ensure material issues are visible and satisfactorily resolved in a timely manner in accordance with service level agreements.
Page 52 |
Exhibit 10.4
TRADEMARK LICENSE AGREEMENT
This Trademark License Agreement (this Agreement ), dated November 8, 2016 (the Effective Date ), is by and between ConAgra Foods RDM, Inc. ( Licensor ), a Delaware corporation, and ConAgra Foods Lamb Weston, Inc., a Delaware corporation ( Licensee ). In this Agreement, Licensor and Licensee are each referred to as a Party and together as the Parties .
RECITALS
1. Licensor is a wholly owned subsidiary of ConAgra Foods, Inc. ( ConAgra ). ConAgra is engaged, directly and indirectly through certain of its subsidiaries, in the LW Business (as such term is defined in the Separation Agreement).
2. Licensor owns goodwill and trademarks including the Licensed Marks (as later defined herein) that are used in both the LW Business and in other businesses in which Licensor is engaged.
3. Licensee is currently a wholly owned subsidiary of ConAgra, and will, following the completion of the LW Transfer (as such term is defined in the Separation Agreement), become a wholly owned subsidiary of Lamb Weston Holdings, Inc., a Delaware corporation ( SpinCo ).
4. SpinCo and ConAgra are Parties to that certain Separation and Distribution Agreement, dated as of the Effective Date (the Separation Agreement ), pursuant to which, SpinCo and ConAgra have agreed to separate ConAgras business into two separate publicly traded companies: (1) ConAgra, which will continue to own and conduct, directly and indirectly, the Retained Business (as such term is defined in the Separation Agreement) and (2) SpinCo, which will own and conduct, directly and indirectly, the LW Business.
5. In connection with the Separation Agreement and related transactions, Licensor wishes to grant Licensee, and Licensee wishes to receive, a license to use the Licensed Marks for use in the LW Business on the terms and conditions set forth herein in exchange for common stock of Licensee.
In consideration of the foregoing and of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms have the meaning given them in this Article 1. Other capitalized terms have the meanings given them elsewhere in this Agreement.
1.1 Affiliate means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such Person. For purposes of this definition, control (including, with correlative meanings,
the terms controlling, controlled by and under common control with) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by agreement or otherwise.
1.2 Alexia Marks means the trademarks identified as Alexia Marks in Schedule A attached hereto and the foreign language translations and foreign character equivalents of such trademarks.
1.3 Complementary Marks means the trademarks identified as Complementary Marks in Schedule B attached hereto and the foreign language translations and foreign character equivalents of such trademarks.
1.4 Discontinued Licensed Products means bread, onion rings, mozzarella sticks, and breaded mushrooms using the Licensed Marks.
1.5 IP Allegation means any allegation or claim by any third party that any of the Licensed Marks is invalid or infringes, dilutes or violates the rights of any third party.
1.6 Licensed Marks means the Alexia Marks and Complementary Marks.
1.7 Licensed Products means frozen food products made from potatoes or sweet potatoes, such as french fries, oven fries, waffle fries, crinkle-cut fries, roasted fries, roasted potatoes, potato puffs, chopped and formed potatoes, and hashed browns. Licensed Products also includes frozen potato and vegetable products that are at least 50% potatoes by weight sold by or on behalf of Licensee using the Licensed Marks.
1.8 Marketing Materials means all advertising and marketing materials, including packaging, tags, labels, advertising, marketing, promotions, displays, display fixtures, instructions, technical sheets, user guides, data sheets, warranties, websites and other materials of any and all types, in any format or media, associated with the Licensed Products.
1.9 Material Breach shall have the meaning ascribed in Section 6.3.
1.10 Material Incident means any one of the following: (a) a series of significant quality problems related to the same root cause, demonstrating a potential failure of Licensees quality control system, (b) an unsatisfactory audit conducted by Licensor or its designee, or (c) the loss of a quality certification.
1.11 New Registrations shall have the meaning ascribed in Section 3.4(b).
1.12 Person means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other entity or organization or any federal, state, local, provincial, foreign or international court, tribunal, judicial or arbitral body, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority or any national securities exchange.
2
1.13 Promotional Items means items bearing any of the Licensed Marks which are sold or given away in connection with the promotion of Licensed Products or of Licensees corporate identity generally (e.g., pens, mugs, clothing, and comparable items).
1.14 Subsidiary of any Person means another Person (other than a natural Person), of which such Person owns directly or indirectly (a) an aggregate amount of the voting securities, other voting ownership or voting partnership interests to elect a majority of the Board of Directors or other governing body or (b) if there are no such voting interests, 51% or more of the equity interests therein.
1.15 Supplier means a Person that manufactures or packages Licensed Products for the Licensee under a written agreement with the Licensee.
1.16 Term shall have the meaning ascribed in Section 6.1.
1.17 Unauthorized Use means any actual, potential, or threatened infringement, misappropriation, act of unfair competition, or other harmful or wrongful activities by any Person with respect to any of the Licensed Marks.
ARTICLE 2
LICENSE
2.1 Scope of License .
(a) Subject to the terms and conditions of this Agreement, Licensor grants to Licensee an exclusive, royalty free, revocable right and license to use the Alexia Marks throughout the world during the Term for Licensed Products and on Promotional Items and Marketing Materials related to Licensed Products. Licensor also grants Licensee the limited right to sublicense the Alexia Marks in accordance with the terms of Section 2.4.
(b) Subject to the terms and conditions of this Agreement, Licensor grants to Licensee an exclusive, royalty free, revocable right and license to use the Complementary Marks throughout the world during the Term for Licensed Products and on Promotional Items and Marketing Materials related to Licensed Products, which Licensed Products also bear one or more of the Alexia Marks. Licensor also grants Licensee the limited right to sublicense the Complementary Marks in accordance with the terms of Section 2.4.
(c) Subject to the terms and conditions of this Agreement, Licensor grants to Licensee an exclusive, royalty free, revocable right and license to use the Licensed Marks throughout the world for Discontinued Licensed Products and on Promotional Items and Marketing Materials related to Discontinued Licensed Products. The license provided for in this Section 2.1(c) expires six months after
3
the Effective Date for all of the Discontinued Licensed Products other than the onion rings. The license provided for in this Section 2.1(c) related to onion rings expires 12 months after the Effective Date. Licensee will have no right to use the Licensed Marks on the Discontinued Licensed Products after that time.
2.2 Exclusivity . For the avoidance of doubt, Licensor shall not use the Licensed Marks in connection with Licensed Products, but Licensor retains the right to use the Licensed Marks on food products other than Licensed Products, including but not limited to frozen vegetables.
2.3 Use of Licensed Marks in Domain Names and URLs and on Social Media Sites . Licensee has no right to use the Licensed Marks in association with a domain name or URL except as expressly agreed in writing by Licensor. To the extent that Licensee wishes to promote its use of the Licensed Marks through Licensors website or social media sites, Licensee shall make such requests in accordance with Section 4.2 and Licensee shall pay Licensor a fair market value fee for Licensors services related to implementing such requests, including for updating Licensors website or social media sites.
2.4 Right to Sublicense .
(a) Licensee shall not sublicense its rights under this Agreement or grant any third party the right to use the Licensed Marks except as expressly provided in this Section 2.4. No purported sublicense or grant of rights in violation of the preceding sentence will be effective. Licensee shall ensure that any sublicensee (permitted or not) complies with the obligations required to be imposed by the provisions of this Section 2.4. The rights granted by Licensee in an authorized sublicense shall be no greater than those granted to Licensee in this Agreement and described in Sections 2.4(b) and 2.4(c). Each sublicense will terminate upon termination of this Agreement.
(b) Licensee may sublicense to an Affiliate or Supplier the right to use the Licensed Marks for Licensed Products and on Marketing Materials and Promotional Items related to Licensed Products. Such sublicense will not include any right to further sublicense and will not be effective until such Affiliate or Supplier agrees in writing that it is subject to the terms and conditions of this Agreement.
(c) Licensee may grant permission to its distributors and sales representatives to use the Licensed Marks in a limited manner incidental to the promotion and sale of Licensed Products, provided that Licensee enters into a written agreement with such distributors and sales representatives that: (i) permit them to use the Licensed Marks only in a pre-approved manner; (ii) prohibits them from sublicensing or granting any rights in the Licensed Marks; and (iii) reserves all ownership rights in the Licensed Marks to Licensor.
2.5 Consideration for the License . In consideration for Licensors grant of the right and license to use the Licensed Marks as provided herein, Licensee shall issue to Licensor 0.6512 shares of common stock of Licensee (the Licensee Shares ), such
4
that, following the issuance of the Licensee Shares, Licensor shall own, free and clear of all liens, 0.6512 shares of common stock of Licensee, which represent all of the issued and outstanding shares of Licensee.
2.6 Tax Treatment . The Parties intend that, for U.S. federal income tax purposes, the transactions described in this Article 2 be governed by Section 351(a) of the Internal Revenue Code of 1986, as amended.
ARTICLE 3
OWNERSHIP, REGISTRATION AND ENFORCEMENT OF THE LICENSED MARKS
3.1 Ownership of Licensed Marks . Licensee agrees that Licensor is the sole and exclusive owner of all right, title, and interest in and to the Licensed Marks and all the goodwill associated therewith. Licensee further agrees that its use of the Licensed Marks, including all goodwill and any additional value in the Licensed Marks created by such usage of the Licensed Marks, shall inure solely to the benefit of Licensor. Nothing in this Agreement is to be construed as granting to Licensee or retaining by Licensee any right, title or interest in or to the Licensed Marks, other than Licensees rights to use the Licensed Marks in accordance with this Agreement. Licensee also agrees that the Licensed Marks are valid and enforceable. Licensee agrees not to challenge the Licensed Marks, or assist any other Person in doing so. Licensor will maintain the Licensed Marks and pay all fees associated with maintenance of the Licensed Marks. Licensee shall not, at any time during or after the Term, dispute or contest, directly or indirectly, Licensors exclusive right and title to the Licensed Marks or the validity thereof.
3.2 Use by Licensee . Use by Licensee of the Licensed Marks shall qualify as valid use by the Licensor. Licensee shall cooperate in taking any actions reasonably requested by Licensor to establish the use of the Licensed Marks by Licensee and its sublicensees, including signing any document, application, filing or agreement, or providing usage specimens reasonably necessary therefor.
3.3 Modification of Licensed Marks . Licensee shall not alter or modify the Licensed Marks in any way. Licensee agrees that it cannot and will not register, or use, any colorable imitation of any of the Licensed Marks or any mark substantially identical or deceptively or confusingly similar thereto.
3.4 Registration and Maintenance of Trademark Rights .
(a) Generally . Licensor shall be responsible for performing all searches, prosecution or other procurement, registration, and maintenance of the Licensed Marks. Licensor is the sole Party entitled to procure and register the Licensed Marks, including any Licensed Marks added to this Agreement by amendment, and is the sole and exclusive owner thereof; provided, however, that if Licensor fails to maintain in force a registration of a Licensed Mark in use by Licensee or to diligently prosecute an application filed for registration of a new Licensed
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Mark, Licensee may take reasonable actions at its sole cost and expense to maintain in force a registration for such Licensed Mark or to prosecute the application filed for the new Licensed Mark, and Licensor shall reasonably cooperate with Licensee in connection therewith. If Licensor is not using a Licensed Mark for at least one year and Licensee is using such Licensed Mark during that period, Licensee shall reimburse Licensor for Licensors reasonable costs and fees, including attorneys fees, associated with Licensors searches, prosecution or other procurement, and maintenance of such Licensed Mark during such time that Licensor did not use and continues not to use the Licensed Mark.
(b) New Registrations . If a Licensed Mark is not registered or the subject of a pending application in a country in which Licensee is using or intends to use such Licensed Mark, Licensee may request that Licensor pursue trademark registration by giving written notice to Licensor specifying the Licensed Mark, the country or countries in which registration is sought, and the Licensed Product(s) for which Licensee is using or proposes to use the Licensed Mark. Licensor shall conduct a trademark search and provide a copy of any resulting search report to Licensee. Following its review of such search report, Licensee may request that Licensor apply for registration of the Licensed Mark in one or more of the countries for the Licensed Product(s) identified in the request, and if, based on the trademark search or other information that it shares with Licensee, Licensor does not reasonably perceive a significant risk associated with use or registration of the Licensed Mark, Licensor shall use commercially reasonable efforts to pursue registration ( New Registrations ).
(c) Costs . Licensee shall be responsible for and shall reimburse Licensor for all costs and expenses incurred by Licensor in searching, prosecuting or otherwise procuring, registering and maintaining the New Registrations.
3.5 Protection and Enforcement .
(a) Notice and Consultation . If Licensee becomes aware of any Unauthorized Use with respect to any of the Licensed Marks, Licensee shall promptly notify Licensor in writing and provide relevant information in its possession relating to such Unauthorized Use, and the Parties shall cooperate and consult in good faith regarding appropriate action to address the Unauthorized Use, consistent with the provisions of this Section 3.5.
(b) Routine Preliminary Enforcement . Notwithstanding any other provision of this Section 3.5, to address any Unauthorized Use that Licensee reasonably believes is impairing or are likely to impair Licensees rights with respect to the Licensed Marks, Licensee may pursue administrative proceedings under the ICANN Uniform Domain Name Dispute Resolution Policy, undertake customs enforcement actions, and send communications or notices (e.g., cease and desist letters) to Persons, if Licensee reasonably believes that such action could not reasonably be expected to provide a basis for declaratory judgment jurisdiction. Licensee is not required to obtain the consent of Licensor prior to taking such action but shall keep Licensor promptly informed of the status and results of such action.
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(c) Enforcement by Licensor . Licensor may take such action as it deems appropriate to protect its rights in the Licensed Marks. Licensor shall consult in good faith with Licensee prior to entering into any settlement, consent judgment, or other voluntary final disposition of any action or proceeding that Licensor reasonably believes would materially impair the rights granted to Licensee under this Agreement. If Licensor commences an action or proceeding arising from Unauthorized Use (a Licensor Action ), Licensor will have the right to control and conduct all negotiations, proceedings, defense and settlement relating to such Licensor Action. The costs associated with and any damages awarded or settlement proceeds recovered in connection with a Licensor Action will be the sole responsibility and property of Licensor. At Licensors expense, Licensee shall provide all assistance reasonably requested by Licensor with respect to such Licensor Action. Licensor may join Licensee as a party to such Licensor Action if, in Licensors reasonable judgment, joining Licensee would be beneficial to the outcome of the Licensor Action.
(d) Enforcement by Licensee . If an Unauthorized Use involves use of the Licensed Marks in connection with products the same as or readily substitutable for the Licensed Products, and if such Unauthorized Use persists and Licensor does not commence an action or proceeding under Section 3.5(c) within a reasonable time, Licensee shall have the right to undertake an action or proceeding to address such Unauthorized Use after consulting in good faith with Licensor regarding Licensees intended undertaking. Licensee promptly shall advise Licensor of Licensees intention to institute any such action or proceeding, and shall provide Licensor an opportunity to voluntarily join in such action or proceeding at Licensors expense. If Licensor voluntarily joins in any such action or proceeding, any damages awarded or settlement proceeds recovered shall be allocated between the Parties as specifically provided in the applicable award or settlement, or if not so allocated, then by the Parties in good faith after each Partys out of pocket expenses are satisfied from the proceeds of the award or settlement (pro-rata if there are insufficient funds). If Licensor chooses not to voluntarily join in any such action or proceeding, then at Licensees expense, Licensor shall provide any assistance reasonably requested by Licensee with respect to such action or proceeding, and Licensor shall not oppose the joinder of Licensor by Licensee as a party to such action or proceeding if required by law or the applicable court, agency or other tribunal. Licensee shall not enter into any settlement, consent judgment, or other voluntary final disposition of any such action or proceeding without written approval of Licensor, which shall not be unreasonably conditioned, withheld or delayed.
3.6 Defense and Settlement of IP Allegations .
(a) Notice and Consultation . If Licensee becomes aware of any IP Allegation with respect to any of the Licensed Marks, or if either Party becomes aware of any IP Allegation with respect to any of the Licensed Marks relating to the Licensed Products, then that Party shall promptly notify the other in writing and provide relevant information in its possession relating to such IP Allegation, and the Parties shall cooperate and consult in good faith regarding appropriate action to address the IP Allegation.
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(b) Resolution by Licensor . Licensor will have exclusive control over the resolution of any IP Allegation, including all negotiations, proceedings, defense and settlement, and specifically including the right to agree to an injunction against further use of any Licensed Mark, provided that no such settlement, consent judgment, or other voluntary final disposition will require any payment by Licensee without Licensees prior written consent. When possible under the circumstances, before agreeing to a settlement, consent judgment, or other voluntary final disposition, Licensor shall advise Licensee regarding any part of such proposed disposition which affects or may reasonably be expected to affect Licensees use of any Licensed Mark, and shall consider in good faith any alternative terms proposed by Licensee to preserve Licensees right to continue to use the Licensed Marks pursuant to this Agreement without interruption.
(c) Resolution by Licensee . If Licensor does not take reasonable action to resolve an IP Allegation within a reasonable period of time following written notice by Licensee: (i) Licensee may assume control over the resolution of such IP Allegation and (ii) Licensee may, among other options, agree to an injunction against further use of any Licensed Mark by Licensee or any of its Affiliates or sublicensees and otherwise settle such IP Allegation with respect to Licensee and its Affiliates and sublicensees, provided that such settlement, consent judgment or voluntary final disposition does not bind or apply to Licensor in any manner without Licensors prior written consent.
(d) Assistance . Subject to the foregoing, each Party shall provide such assistance as the other Party may reasonably request in connection with the defense or settlement of any IP Allegation.
3.7 Management of the Licensed Marks . In furtherance of the protection and preservation of the Licensed Marks, Licensee agrees to cooperate and provide reasonable assistance with the administrative activities involving the Licensed Marks and to comply with all reasonable requests by Licensor to review and evaluate the portfolio of Licensed Marks, including reviews of the current and planned use or abandonment of the Licensed Marks.
3.8 Recordation of Agreement . The Parties recognize that in some countries, it may be necessary or desirable to record or register this Agreement, a registered user agreement or other documentation associated with the licenses granted in this Agreement. If Licensor determines that such filing is necessary or desirable, the Parties shall cooperate with respect to the preparation and filing thereof.
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ARTICLE 4
QUALITY ASSURANCE
4.1 Quality of Licensed Products .
(a) Licensee shall use the Licensed Marks only in connection with high-quality products and services that comply with all applicable laws and regulations in the jurisdictions in which the Licensed Products are advertised, marketed, manufactured, sold, or distributed. Licensee covenants and warrants that the Licensed Products in connection with which the Licensed Marks are used shall be of at least the quality of similar products sold by Licensor and its Affiliates under the Licensed Marks before the Effective Date.
(b) In connection with the manufacture, packaging, storage, shipment, promotion, distribution, and sale of the Licensed Products, Licensee shall (i) comply with all applicable laws and regulations, (ii) conform to food industry best practices, (iii) not exceed local work hours except for appropriately compensated overtime, (iv) prohibit the use of and not, directly or indirectly, use child labor ( i.e. , a worker of less than 16 years of age or younger than the compulsory age to be in school), (v) not knowingly use prison or forced labor or purchase materials from a Person that uses prison, forced, or child labor, and (vi) not take any other action that would similarly tarnish or otherwise harm the goodwill or reputation of Licensor or the Licensed Marks.
(c) Sampling and Testing . Licensee, its sublicensees and Affiliates must maintain a testing and sampling program for the Licensed Products manufactured or stored at their facilities, sufficient to determine whether Licensed Products meet the requirements of this ARTICLE 4. Licensee must maintain records of its sampling and testing for at least five years.
(d) Samples . Upon request from Licensor, Licensee must provide Licensor with a reasonable number of samples of the Licensed Products for testing and evaluation.
4.2 Use Of The Licensed Marks On Promotional Items and Marketing Materials Related To Licensed Products . Licensee shall use the Licensed Marks on Promotional Items and Marketing Materials only as approved by the Licensor. Licensor hereby approves all forms of Promotional Items and Marketing Materials related to the Licensed Products as used by Licensor before the Effective Date. Before using any of the Licensed Marks on new Promotional Items or Marketing Materials, Licensee shall provide Licensor with written notice of its intention to do so and three samples of the proposed new Promotional Items or Marketing Materials for Licensors approval. Licensor will provide written notice of its disapproval of such new Promotional Items or Marketing Materials within thirty days, or, if no such written disapproval is received by Licensee within that time, the new Promotional Items or Marketing Materials will be deemed approved.
4.3 Monitoring .
(a) Consumer Inquiries . Licensee shall provide information on packages of each Licensed Product to enable consumers to contact Licensee regarding the quality of such Licensed Products. Licensee shall monitor consumer inquiries regarding the Licensed Products bearing the Licensed Marks and provide notice to Licensor of consistent complaints or issues related to quality of such Licensed Products.
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(b) Recalls . Licensee shall notify Licensor within twenty-four hours of becoming aware of any facts or circumstances that Licensee reasonably believes may require recall of any Licensed Products bearing any of the Licensed Marks and shall keep Licensor timely apprised of: any internal or external investigation of such facts or circumstances, communications with applicable regulatory agencies, and the progress of any recall efforts.
(c) Reporting . Licensee shall submit reports at least quarterly to Licensor in the form agreed to by the Parties from time to time, sufficient for Licensor to confirm the consistent quality of Licensed Products bearing the Licensed Marks.
4.4 Quality-Control Audits . Licensor or its authorized designee may conduct semi-annual quality-control audits to inspect plants, facilities, products or services bearing or associated with the Licensed Marks. In addition, Licensor or its authorized designee may conduct such quality control audits at any time as the result of a Material Incident or introduction of a new sublicensee or facility associated with production, packaging or distribution of Licensed Products bearing the Licensed Marks. A written notice of audit shall be made at least five business days prior to the commencement of the audit. Any audit shall be conducted during regular business hours and in a manner designed to minimize disruption to Licensees normal business activities.
4.5 Independent Inspections . With respect to facilities at which Licensed Products, or ingredients therefor, are manufactured or stored, Licensee agrees to provide Licensor with copies of any and all inspection reports, site visit reports, or the like, generated by Persons other than Licensee personnel. This includes reports generated by any governmental agency.
4.6 Non-Compliance .
(a) Licensee shall promptly notify Licensor of the occurrence of a Material Incident.
(b) If Licensee or any of its Affiliates or permitted sublicensees is not in compliance with the obligations of Section 4.1, or if a Material Incident has occurred (either, a Quality Issue ), Licensor may give Licensee written notice of non-compliance setting forth a description of the nature of the Quality Issue and a requested action for curing the Quality Issue (a Notice of Non-Compliance ). Upon Licensees receipt of a Notice of Non-Compliance, Licensee shall promptly correct the Quality Issue identified therein by enacting the cure mechanisms described in Section 4.7.
4.7 Cure of Non-Compliance .
(a) Cure Plan . Licensee shall act in good faith, using commercially reasonable efforts to cure or otherwise resolve all Quality Issues as soon as practicable. If the Quality Issue identified in a Notice of Non-Compliance cannot reasonably be cured or otherwise resolved within 10 days, Licensee shall submit
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to Licensor a written plan to correct the Quality Issues ( Cure Plan ) within 10 days following receipt of the Notice of Non-Compliance. Licensee shall include a Cure Plan in any notification it makes to Licensor of a Material Incident.
(b) Initial Cure Period . After Licensee submits its Cure Plan to Licensor, the Parties shall each appoint a representative to promptly review and discuss in good faith the proposed Cure Plan. When Licensor, in its sole discretion, has approved the Cure Plan, Licensee shall have thirty days or such longer period as approved by Licensor on a case-by-case basis, in its sole discretion, in which to cure the Quality Issues.
(c) Failure to Cure; Reinstatement . If the Quality Issues have not been cured within the time period provided for in the Cure Plan, then such Quality Issues shall be deemed to be uncured ( Uncured Quality Issues ). Licensee shall cease use of the Licensed Marks on, or in connection with, any Licensed Products that are the subject of the Uncured Quality Issues as soon as reasonably practicable but no later than ninety days following the date on which such Quality Issues are determined to be Uncured Quality Issues. During such time, Licensee may not create, manufacture, produce, distribute or otherwise use any Marketing Materials or Promotional Items bearing any Licensed Marks in connection with Licensed Products that are associated with the Uncured Quality Issues.
(d) Continuing Efforts to Cure . Unless the Agreement has terminated as provided in ARTICLE 6, Licensee may continue its efforts toward completing the cure following a failure described in Section 4.7(c), and if the Quality Issues are cured to the reasonable satisfaction of Licensor, then Licensees rights to use the Licensed Marks shall be reinstated from that date forward.
4.8 Sublicensees . For the avoidance of doubt, the obligations of Licensee and the rights of Licensor under this ARTICLE 4 apply equally with respect to any sublicensee of Licensee. Nothing in this ARTICLE 4 shall be deemed to expand the rights of Licensee herein, to limit Licensees obligations hereunder, or to preclude Licensor from pursuing any other rights or remedies.
ARTICLE 5
ASSIGNMENT
5.1 By Licensor . This Agreement shall be freely assignable by Licensor.
5.2 By Licensee . Licensee shall not assign this Agreement or any of Licensees rights or obligations under this Agreement without the express written permission of Licensor, except that Licensee may assign this Agreement to a purchaser of all of the assets of the LW Business. No purported assignment in violation of the preceding sentence will be effective. No assignment will be effective until the assignee agrees in writing to be bound by the terms and conditions of this Agreement.
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ARTICLE 6
TERM AND TERMINATION
6.1 Term . The Term of this Agreement shall begin on the Effective Date and shall continue perpetually, unless this Agreement is earlier terminated as set forth as provided in this ARTICLE 6 (the Term ).
6.2 Termination By Licensee . Licensee may terminate this Agreement by giving written notice to Licensor effective on the date of such written notice or on a specified date no later than six months following the date of the notice. Licensee shall cease all use of the Licensed Marks by the date of termination indicated in the notice.
6.3 Termination By Licensor For Material Breach . Licensor may terminate this Agreement upon a Material Breach of this Agreement by Licensee if such Material Breach remains uncured or otherwise unresolved for a period of 30 days following Licensees receipt of written notice from Licensor describing the breach. A Material Breach means any of the following:
(a) Licensees failure to comply with any of its obligations under ARTICLE 4 (Quality Assurance) or failure to comply with its obligation to remedy breaches that are not Material Breaches, as required by Section 6.5.
(b) Licensees conduct that Licensor reasonably believes will adversely impact or has adversely impacted the Licensed Marks, the goodwill associated with the Licensed Marks, or the reputation of Licensor;
(c) Licensees use of any Licensed Marks on any product or service other than the Licensed Products or Licensees use of any marks of Licensor other than the Licensed Marks; or
(d) Licensees purported assignment, sublicense or grant of rights in breach of the prohibitions set forth in Section 2.4.
6.4 Upon Licensee Ceasing Use of the Licensed Marks . Licensor may terminate this Agreement immediately upon written notice if Licensee ceases substantially all use of all Licensed Marks or publicly announces its intention to do so. Licensor may not exercise this right if Licensee has previously given a notice under Section 6.2 that specifies an effective date of termination later than the date of the announced intended cessation of use.
6.5 Other Breach . Other than a breach of ARTICLE 4 (Quality Assurance), a Party may provide the other Party with written notice alleging that the receiving Party has breached an obligation under this Agreement. The written notice must set forth with particularity a description of the purported breach and requested actions to remedy the breach. The Party accused of breach in such notice will have 60 days from the date of the notice to cure the breach.
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6.6 Effect of Termination .
(a) Reversion Rights . Upon the effective date of termination, all of Licensees rights in this Agreement shall immediately revert to Licensor. Licensee and its sublicensees shall promptly cease all use of the Licensed Marks and any marks substantially or confusingly similar variations thereof by the time periods indicated in this Section 6.6 or, in the case of termination by Licensee under Section 6.2, by the date indicated in Licensees notice. For so long as Licensee and its sublicensees continue to use the Licensed Marks, whether or not permitted, they shall comply with all provisions of this Agreement applicable to that use, including but not limited to ARTICLE 4 (Quality Assurance).
(b) Time Periods . Upon termination under Section 6.3, Licensee shall, and shall cause all sublicensees to: (i) as soon as reasonably practical, but no later than 30 days following the effective date of termination, cease producing or manufacturing Licensed Products, Marketing Materials, and Promotional Items using or bearing any of the Licensed Marks; (ii) as soon as reasonably practical, commence the actions described in paragraph 6.6(c) for domain names; and (iii) as soon as reasonably practical, but no later than 90 days following the effective date of the termination, cease all use of the Licensed Marks, including using, selling or otherwise distributing Licensed Products, Marketing Materials, Promotional Items or any other item bearing or using any of the Licensed Marks, regardless of when produced or manufactured.
(c) Upon termination of this Agreement for any reason, Licensee shall take all necessary steps to transfer promptly to Licensor the registrations for all domain names containing the Licensed Marks or marks confusingly similar thereto registered to Licensee or within its power, possession or control.
ARTICLE 7
INDEMNIFICATION
7.1 By Licensee . Licensee shall defend, indemnify and hold harmless Licensor and its Affiliates and its and their successors, legal representatives or assigns, and their respective officers, agents, employees and representatives (collectively, Licensor Indemnitees ), from and against all damages, liabilities, losses, costs and expenses of any and every nature or kind whatsoever, (including reasonable attorneys fees and disbursements and all amounts paid in investigation, defense or settlement of the foregoing) (collectively, Damages ) that any of the Licensor Indemnitees may incur as a result of third-party actions, proceedings, or claims arising out of or in consequence of: (a) the formulation, manufacture, production, packaging, transportation, storage, performance, marketing, merchandising, promotion, advertisement, distribution, or sale of any product, material, or service by or on behalf of Licensee, its Affiliates or its sublicensees that bear, use, or are associated with the Licensed Marks, including, without limitation, any Licensed Product, under any theory of including without limitation product liability, tort, or otherwise; (b) any breach of this Agreement by Licensee; (c) use of the Licensed Marks by Licensee or its Affiliates or their employees, agents, or sublicensees in a manner that infringes the rights of any third party; and (d) any failure by Licensee or its Affiliates or their employees, agents, or sublicensees to comply with applicable law in connection with this Agreement.
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7.2 By Licensor . Licensor shall defend, indemnify and hold harmless Licensee and its Affiliates and its and their successors, legal representatives or assigns, and their respective officers, agents, employees and representatives (collectively Licensee Indemnitees ), from and against all Damages that any of the Licensee Indemnitees may incur as a result of third-party actions, proceedings, or claims to the extent arising out of or in consequence of: (a) the formulation, manufacture, production, packaging, transportation, storage, performance, marketing, merchandising, promotion, advertisement, distribution or sale of any product, material or service by or on behalf of Licensor, its Affiliates or its licensees (other than Licensee or its Affiliates or their sublicensees) that bear or use the Licensed Marks, including, without limitation under any theory of product liability, tort, or otherwise; (b) any breach of this Agreement by Licensor; (c) use of the Licensed Marks by Licensor or its Affiliates or their employees, agents, or sublicensees in a manner that infringes the rights of any third party; and (d) any failure by Licensor or its Affiliates or their employees, agents or sublicensees to comply with applicable law in connection with this Agreement.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties . Each Party represents and warrants that:
(a) the Party has the full legal right, title, interest, power, and authority to enter into this Agreement and to perform its legal obligations hereunder, and has taken all necessary action to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
(b) this Agreement has been duly executed and delivered on behalf of the Party and constitutes a legal, valid, binding obligation, enforceable against the Party in accordance with its terms; and
(c) to the best of the Partys knowledge and belief, the execution and delivery of this Agreement and the performance of the Partys obligations hereunder do not conflict with or violate any requirement of applicable laws or regulations and do not conflict with, or constitute a default under, any contractual obligation of the Party.
ARTICLE 9
DISCLAIMER OF WARRANTIES
9.1 Disclaimer . NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE LICENSES GRANTED IN THIS AGREEMENT TO LICENSEE ARE GRANTED ON AN AS IS BASIS WITH NO REPRESENTATIONS OR
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WARRANTIES OF ANY KIND, AND LICENSOR, ON BEHALF OF ITSELF AND ITS AFFILIATES, HEREBY EXCLUDES AND DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE LICENSES AND LICENSED MARKS, INCLUDING THOSE REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY, AND NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF DEALING OR TRADE USAGE.
ARTICLE 10
CONFIDENTIALITY
10.1 Certain terms and conditions of this Agreement and the information disclosed by or on behalf of one Party to the other Party in connection with the performance of this Agreement constitute Confidential Information .
10.2 Each Party:
(a) shall hold, and shall cause its Affiliates and the officers, directors, employees and agents of any of them to hold, all Confidential Information of the other Party in strict confidence, exercising at least the same degree of care that it applies to its own business sensitive and proprietary information; and
(b) shall not disclose, and shall cause its Affiliates and the officers, directors, employees and agents of any of them to not disclose, the other Partys Confidential Information to any other Person, except as expressly permitted in this ARTICLE 10.
10.3 The obligations of the foregoing Section 10.2 will not apply:
(a) to the extent that disclosure is compelled by subpoena or other compulsory disclosure notice from a governmental authority or, in the opinion of the receiving Partys counsel, by other requirements of law, but only after compliance with Section 10.4;
(b) to the extent the receiving Party can show that the Confidential Information was (a) in the public domain through no fault of such Party, its Affiliates, or any of the officers, directors, employees or agents of any of them; (b) later lawfully acquired from other sources by such Party, which sources are not themselves bound by a confidentiality obligation; or (c) independently generated without reference to any proprietary or confidential information of the disclosing Party; or
(c) to the receiving Partys directors, officers, employees, agents, accountants, counsel and other advisors and representatives who (a) need to know such information for legitimate business purposes, and (b) have been advised of the confidentiality obligations in this ARTICLE 10.
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10.4 If a Party receives a subpoena or other compulsory disclosure notice from a governmental authority requesting disclosure of Confidential Information that is subject to the confidentiality provisions of this Article, such Party shall promptly provide to the other Party a copy of the notice and an opportunity to seek reasonable protective arrangements. If such appropriate protective arrangements are not obtained, the Party that is required to disclose such information shall furnish, or cause to be furnished, only that portion of such Confidential Information that is legally required to be disclosed and shall use reasonable efforts to ensure that confidential treatment is accorded such information.
ARTICLE 11
GENERAL TERMS
11.1 Performance . Each Party shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations to be performed by any Subsidiary of such Party under this Agreement.
11.2 Counterparts . This Agreement may be executed in multiple counterparts (any one of which need not contain the signatures of more than one Party), each of which will be deemed to be an original but all of which taken together will constitute one and the same agreement. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or other electronic transmission, will be treated in all manner and respects as an original agreement and will be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any Party, the other Party will re-execute original forms thereof and deliver them to the requesting Party.
11.3 Entire Agreement . This Agreement, including its Schedules, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior negotiations, agreements, and understandings of the Parties of any nature, whether oral or written, with respect to such subject matter.
11.4 Force Majeure . If any Person is prevented from or delayed in complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, strike, walkout, lockout or other labor trouble or shortage, delays by unaffiliated suppliers or carriers, shortages of fuel, power, raw materials or components, equipment failure, any Law, order, proclamation, regulation, ordinance, demand, seizure or requirement of any legal or regulatory authority, riot, civil commotion, war, rebellion, act of terrorism, nuclear or other accident, explosion, casualty, pandemic, or act of God, or act, omission or delay in acting by any governmental authority, in each case, that is beyond the reasonable control and without the fault of such Party (it being understood and agreed by the Parties that any events for which a reasonable provider of similar services or a reasonable user of similar services would have adequate contingencies to avoid such events shall not, under any circumstances, be considered beyond the reasonable control of a Person), then upon notice from one Party to the other Party, the affected provisions and/or other requirements of this Agreement shall be suspended
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during the period of such disability and, unless otherwise set forth herein to the contrary, the affected Party shall have no liability to the other Party in connection therewith. The affected Party shall use Commercially Reasonable Efforts (as defined in the Separation Agreement) to promptly remove such disability as soon as possible; provided, however, that nothing in this Section 11.4 will be construed to require the settlement of any strike, walkout, lockout or other labor dispute on terms which, in the reasonable judgment of the affected Party, are contrary to its interest. It is understood that the settlement of a strike, walkout, lockout or other labor dispute will be entirely within the discretion of affected Party. Upon becoming aware of a disability causing a delay in performance or preventing performance of any obligations under this Agreement, the affected Party shall promptly notify the other Party in writing of the existence of such disability and the anticipated duration of the disability.
11.5 Severability . The Parties agree that (a) the provisions of this Agreement will be severable in the event that for any reason whatsoever any of the provisions hereof are invalid, void or otherwise unenforcable, (b) any such invalid, void or otherwise unenforceable provisions will be replaced by other provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions will remain valid and enforceable to the fullest extent permitted by applicable law.
11.6 No Third Party Beneficiaries . Except as otherwise provided in ARTICLE 7 (Indemnification), this Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns and does not confer on third parties any remedy, claim, reimbursement, claim of action or other right in addition to those existing without reference to this Agreement.
11.7 Amendments and Waivers .
(a) This Agreement may be amended and any provision of this Agreement may be waived; provided, however, that any such amendment or waiver, as the case may be, is in writing and signed, in the case of an amendment, by the Parties or, in the case of a waiver, by the Party against whom the waiver is to be effective. No course of dealing between or among any Persons having any interest in this Agreement will be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Party under or by reason of this Agreement.
(b) No delay or failure in exercising any right, power or remedy hereunder will affect or operate as a waiver thereof, nor will any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or remedy preclude any further exercise thereof or any other right, power or remedy.
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11.8 Construction . The descriptive headings herein are inserted for convenience of reference only and are not intended to be a substantive part of or to affect the meaning or interpretation of this Agreement. Reference to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. References in this Agreement to any document, instrument or agreement (including this Agreement) includes and incorporates all exhibits, disclosure letters, schedules and other attachments thereto. Unless the context otherwise requires, any references to a Section or Article will be to a Section or Article of this Agreement. The use of the words include or including in this Agreement will be deemed to be followed by the words without limitation. The use of the word covenant will mean covenant and agreement. The use of the words or, either or any will not be exclusive. Days means calendar days unless specified as business days. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Except as otherwise expressly provided elsewhere in this Agreement, any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a Party, such Party may give or withhold such consent in its sole and absolute discretion, the parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.
11.9 No Agency . This Agreement is not be deemed or construed to create any partnership, joint venture, principal/agent or any other agency relationship between the Parties.
11.10 Successors and Assigns . This Agreement will be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. The successors and permitted assigns of a Party will include any permitted assignee as well as the successors in interest to such permitted assignee, whether by merger or liquidation, including successive mergers or liquidations, or otherwise.
11.11 Survival . The terms and conditions set forth in Section 6.6 (Effect of Termination), ARTICLE 7 (Indemnification), ARTICLE 9 (Disclaimer of Warranties), ARTICLE 10 (Confidentiality), and ARTICLE 11 (General Terms), including the related definitions set forth in ARTICLE 1, and any other provisions which by their nature are intended to survive termination, shall survive any termination of this Agreement.
11.12 Governing Law and Jurisdiction . This Agreement will be governed by and construed and enforced in accordance with the substantive laws of the State of Delaware, without regard to the conflicts of laws provisions that would cause the laws of another state to apply. Except as expressly contemplated by another provision of this Agreement, the Parties irrevocably consent and submit to the exclusive jurisdiction of federal and state courts located in the State of Delaware.
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11.13 Notices .
(a) All notices, requests, permissions, waivers and other communications hereunder will be in writing and will be deemed to have been duly given (i) upon transmission, if sent by email with confirmation of receipt, (ii) when delivered, if delivered personally to the intended recipient, and (iii) one business day following sending by overnight delivery via an international courier service and, in each case, addressed to a Party at the following address for such Party:
If to Licensor:
ConAgra Foods RDM, Inc.
c/o ConAgra Foods, Inc.
222 W. Merchandise Mart Plaza, Suite 1300
Chicago, Illinois 60654
Attention: Colleen Batcheler
Email: colleen.batcheler@conagra.com
If to Licensee:
ConAgra Foods Lamb Weston, Inc.
c/o Lamb Weston Holdings, Inc.
599 S. Rivershore Lane
Eagle, Idaho 83616
Attention: Eryk J. Spytek
Email: eryk.spytek@conagra.com
(b) A Party may change its address for notice by written notice given in accordance with the foregoing provisions. Notwithstanding the manner of delivery, whether or not in compliance with the foregoing provisions, any notice, demand or other communication actually received by a Party shall be deemed delivered when so received.
[ Signature Page Follows ]
19
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have executed this Agreement.
CONAGRA FOODS RDM, INC. | ||
By: | /s/ Carey L. Bartell | |
Name: | Carey L. Bartell | |
Title: | President |
CONAGRA FOODS LAMB WESTON, INC. | ||
By: | /s/ Eryk J. Spytek | |
Name: | Eryk J. Spytek | |
Title: | Vice President & Secretary |
Schedule A
ALEXIA MARKS
[See Attached.]
Schedule A
Alexia Marks
COUNTRY |
REFERENCE # |
FILED |
APP # | REG DT |
REG # |
STATUS |
CLASSES | |||||||||||||||
ALEXIA |
||||||||||||||||||||||
AUSTRALIA |
500628.3841 | 06/22/2012 | 1497950 | 6/22/2012 | 1497950 | REGISTERED | 29, 30 | |||||||||||||||
OWNER: | CONAGARA FOODS LAMB WESTON, INC. | |||||||||||||||||||||
CLASS | DESCRIPTION | |||||||||||||||||||||
29 | frozen appetizers consisting primarily of cheese, mushrooms, onions and potatoes; frozen processed vegetables; frozen side dishes consisting primarily of vegetables | |||||||||||||||||||||
30 | breads | |||||||||||||||||||||
BRAZIL |
500628.ALEXIA-BR | PROPOSED | 29, 30 | |||||||||||||||||||
OWNER: | CONAGRA FOODS RDM, INC. | |||||||||||||||||||||
CLASS | DESCRIPTION | |||||||||||||||||||||
29 | entire class heading, specifically frozen appetizers consisting primarily of cheese, mushrooms, onions and potatoes; frozen processed vegetables; frozen side dishes consisting primarily of vegetables | |||||||||||||||||||||
30 | entire class heading, specifically breads | |||||||||||||||||||||
CANADA |
500628.240 | 5/7/2002 | 1,140,100 | 10/4/2005 | TMA649,567 | REGISTERED | N/A | |||||||||||||||
OWNER: | CONAGRA FOODS, INC. | |||||||||||||||||||||
CLASS | DESCRIPTION | |||||||||||||||||||||
N/A | potato products, namely French fried potatoes and processed potatoes; potato, grain, vegetable and legume based snack foods; potato product, namely French fried potatoes and processed potatoes. | |||||||||||||||||||||
CHINA |
500628.3172 | 3/25/2010 | 8149557 | 4/21/2011 | 8149557 | REGISTERED | 29 | |||||||||||||||
OWNER: | CONAGRA FOODS LAMB WESTON, INC. | |||||||||||||||||||||
CLASS | DESCRIPTION | |||||||||||||||||||||
29 | 1. Frozen processed potatoes; 2. Deep frozen vegetables; 3. Cooked vegetables; 4. Dried vegetables; 5. Dehydrated vegetables; 6. Potato crisps; 7. Potato fritters; 8. Potato Flakes; 9. Preserved vegetables; 10. Vegetable-based snack food. | REGISTERED | 30 | |||||||||||||||||||
CHINA |
500628.3175 | 8/18/2010 | 8584424 | 9/7/2011 | 8584424 | REGISTERED | 30 | |||||||||||||||
OWNER: | CONAGRA FOODS LAMB WESTON, INC. | |||||||||||||||||||||
CLASS | DESCRIPTION | |||||||||||||||||||||
30 | breads and rolls | |||||||||||||||||||||
DOMINICAN REPUBLIC |
500628.3162 | 12/7/2011 | 2011-29315 | 3/19/2012 | 193819 | REGISTERED | 29 | |||||||||||||||
OWNER: | ConAgra Foods RDM, Inc. | |||||||||||||||||||||
CLASS | DESCRIPTION | |||||||||||||||||||||
29 | meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats; specially potato products, namely, French fried potatoes and potato products. | |||||||||||||||||||||
EUROPEAN UNION (C |
500628.1056 | 5/7/2002 | 2687937 | 5/1/2002 | 2687937 | REGISTERED | 29 | |||||||||||||||
OWNER: | CONAGRA FOODS LAMB WESTON, INC. | |||||||||||||||||||||
CLASS | DESCRIPTION | |||||||||||||||||||||
29 | potato products including French fried potatoes, instant potatoes and processed potatoes; potato-based snack foods and chips, grain-based snack foods and chips, vegetable-based snack foods and chips and legume based snack foods and chips | |||||||||||||||||||||
EUROPEAN UNION (C |
500628.3880 |
2/8/2013 |
011559226 | 2/8/2013 |
011559226 |
REGISTERED |
29, 30 | |||||||||||||||
OWNER: | CONAGRA FOODS LAMB WESTON, INC. | |||||||||||||||||||||
CLASS | DESCRIPTION | |||||||||||||||||||||
29 | frozen processed vegetables; frozen, prepared or packaged side dishes consisting primarily of vegetables; frozen appetizers, namely, processed mushrooms, onion rings, frozen vegetables, and cheese sticks. | |||||||||||||||||||||
30 | breads, rolls and biscuits. |
Page 1
Schedule A
Page 2
Schedule A
COUNTRY |
REFERENCE # |
FILED |
APP # | REG DT |
REG # |
STATUS |
CLASSES | |||||||||||
ALEXIA OVEN BLENDS |
||||||||||||||||||
CANADA |
500628.245 | 4/19/2004 | 1214208 | 5/31/2006 | TMA665325 | REGISTERED | N/A | |||||||||||
OWNER: | CONAGRA FOODS, INC. | |||||||||||||||||
CLASS | DESCRIPTION | |||||||||||||||||
N/A | frozen French fried potatoes |
Page 3
Schedule B
COMPLEMENTARY MARKS
[See Attached.]
Schedule B
Complementary Marks