EX-10.44 By-Products Marketing Agreement

EX-10.44 7 d08717exv10w44.txt EX-10.44 BY-PRODUCTS MARKETING AGREEMENT Exhibit 10.44 "***" - Confidential portions of this Agreement have been omitted and filed separately with the Securities and Exchange Commission under a Confidential Treatment Request, pursuant to Rule 406 of the Securities Act of 1933, as amended By-Products Marketing Agreement ConAgra Trade Group Pty Ltd ConAgra Trade Group, Inc. Australia Meat Holdings Pty Limited BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- TABLE OF CONTENTS

- -------------------------------------------------------------------------------- Page (i) BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- 10. GST 10 10.1 GST to be added to amounts payable 11 10.2 Liability net of GST 11 10.3 Timing of the payment of the GST Amount 11 10.4 Revenue exclusive of GST 11 10.5 Cost exclusive of GST 11 10.6 GST obligations to survive termination 11 10.7 Application to New Zealand GST 11 11. FORCE MAJEURE 12 12. NO CONSEQUENTIAL DAMAGES 12 13. RELATIONSHIP OF THE PARTIES 12 13.1 No partnership 12 14. INDEMNITY 12 15. RECALL OF PRODUCTS 13 16. COMPLIANCE WITH LAW/TESTING 13 17. NOTICES 13 18. ENTIRE AGREEMENT 14 19. ASSIGNMENT 14 20. NO WAIVER 15 21. FURTHER ASSURANCES 15 22. NO MERGER 15 23. GOVERNING LAW AND JURISDICTION 15 24. COUNTERPARTS 15 SCHEDULE 1 - PRICES 17 SCHEDULE 2 - SPECIFICATIONS 1 SCHEDULE 3 - FORM 5 3 SCHEDULE 4 - BID SHEETS 4 SCHEDULE 5 - MONTHS AND QUARTERS 6

- -------------------------------------------------------------------------------- Page (ii) BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- DATE October 8, 2003 PARTIES 1. CONAGRA TRADE GROUP PTY LTD (ACN 003 823 701) incorporated in New South Wales of 15 Gough Street, Richmond, Victoria (CTG) 2. CONAGRA TRADE GROUP, INC., incorporated in Delaware, United States of America (CTGI) 3. AUSTRALIA MEAT HOLDINGS PTY LIMITED (ACN 011 062 338) incorporated in Queensland of 175 Riverview Road, Dinmore, Queensland (AMH) RECITALS A As at the date of this Agreement, AMH carries on the Business through its division known as "CTG Rendered Products". B The parties wish to provide for AMH to continue to carry on the Business using the Registered Business Name. AMH also wishes to retain the licence previously granted to AMH by CTG to use CTG's common law rights in the Business Name and CTG's rights in the Trade Mark. C CTG and CTGI agree to provide to AMH the services of the Key Persons, to assist with the marketing and selling of the Products. D In consideration of supplying the services of the Key Persons to AMH, AMH will pay to CTG the fees calculated in accordance with this Agreement. IT IS AGREED as follows. 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS The following definitions apply unless the context requires otherwise. BASE FEE means the fee referred to and calculated in accordance with clause 8.2. BONUS FEE means the fee referred to and calculated in accordance with clause 8.3. BUSINESS means the marketing and sale of the Products by AMH in either Australia or New Zealand, whether through CTGRP or otherwise. BUSINESS NAME means the name "CTG Rendered Products". COMMENCEMENT DATE means (despite the date on which this Agreement is executed) 26 May 2003. CTGRP means the trading division of AMH known as "CTG Rendered Products" as at the date of this Agreement. - -------------------------------------------------------------------------------- Page 1 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- FACILITIES means the facilities owned by AMH and known as: o Dinmore, Queensland; o Beef City, Queensland; o Rockhampton; Queensland; and o Townsville, Queensland, (each of them a FACILITY). FORM 5 means a Form 5 "Notice of Cessation of Business under Business Name" pursuant to the Business Names Act 1962 (Qld) (or such other form as may replace that form) substantially in the form set out in Schedule 3. KEY PERSONS means Ian Bromell, Mark Frost and Scott Weitemeyer for so long as they remain employees of CTG located in Australia, Chris Sutherland for so long as he remains an employee of CTG located in New Zealand, Eric Watts for so long as he remains an employee of CTGI in Australia and such other employees of CTG or CTGI as the parties may agree from time to time. LOSS means an amount (which is a negative number) which is: (a) the total of the amounts credited to the accounts kept in respect of the Business during the relevant Year; less (b) the total of the amounts debited to the accounts kept in respect of the Business during the relevant Year. MONTH means each monthly financial reporting period for CTG during the Term as set out in Schedule 5. PRICE means the notional price for a Product calculated in accordance with clause 6. PRODUCTS means (a) all of the following rendered by-products produced by AMH at the Facilities: o blood meal; o inedible tallow; o anti/post mortem tallow; o edible tallow; o meat and bone meal; and o save all tallow; and (b) all rendered meat by-products of any kind purchased by AMH in Australia or New Zealand from third parties for the purpose of resale. (each of them a PRODUCT). PROFIT means an amount (which is a positive number) which is: (a) the total of the amounts credited to the accounts kept in respect of the Business during the relevant Year; less - -------------------------------------------------------------------------------- Page 2 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- (b) the total of the amounts debited to the accounts kept in respect of the Business during the relevant Year. QUARTER means quarterly financial period for CTG during the Term as set out in Schedule 5. REGISTERED BUSINESS NAME means the business name "CTG Rendered Products" registered in Queensland with the number BN17329036. SALARY AMOUNT means an amount equal to the salary and employee benefits, including any taxes and charges, which CTG or CTGI is liable to pay to, or in respect of the employment by CTG or CTGI of the Key persons for a Month. SPECIFICATIONS means the specifications for the Products set out in Schedule 3. TERM means the term of this Agreement in clause 2. TRADE MARK means Australian Trade Mark registration 842732 owned by CTG. YEAR means each yearly financial reporting period for CTG during the Term as set out in Schedule 5. 1.2 INTERPRETATION Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise. (a) The singular includes the plural, and the converse also applies. (b) A gender includes all genders. (c) If a word or phrase is defined, its other grammatical forms have a corresponding meaning. (d) A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity. (e) A reference to a clause, schedule or annexure is a reference to a clause of or schedule or annexure to, this Agreement. (f) A reference to an agreement or document (including a reference to this Agreement is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document. (g) A reference to writing includes any method of representing or reproducing words, figures, drawings, or symbols in a visible and tangible form. (h) A reference to a party to this Agreement or another agreement or document includes the party's successors, permitted substitutes and permitted assigns. (i) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and regulation or statutory instrument issued under it. (j) A reference to conduct includes an omission, statement or undertaking, whether or not in writing. (k) A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument or document of any kind. - -------------------------------------------------------------------------------- Page 3 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- (l) A reference to dollars or $ is to Australian currency. (m) A reference to an asset includes any real or personal, present or future, tangible or intangible property or asset (including intellectual property) and any right, interest, revenue or benefit in, under or derived from the property or asset. (n) All references to time are to Brishane time. (o) Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included. (p) Nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it. (q) Schedules and annexures to this Agreement form part of the terms of this Agreement. 1.3 CONSENTS OR APPROVALS If the doing of any act, matter or thing under this Agreement is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the party in its absolute discretion unless expressly provided otherwise. 2. TERM - -------------------------------------------------------------------------------- 2.1 TERM This Agreement commences on the Commencement Date and expires on 31 May 2005 (the "Initial Term"). Provided, however, this Agreement shall automatically renew for additional one (1) year terms thereafter on the same terms and conditions unless either party gives written notice of its intention not to renew the Agreement at least ninety (90) days prior to the end of the Initial Term or any renewal term. Provided further, that in the event CTG notifies Swift & Company and AMH that CTG, CTGI or one of their affiliates have executed a long-term agreement for the storage of rendered by-products (the "Storage Agreement"), then the parties agree to amend this Agreement so that the term of this Agreement shall expire at the same time as the Storage Agreement. Provided further, however, that the foregoing sentence shall not apply unless AMH or one of its affiliates has approved the terms of the Storage Agreement. 2.2 TERMINATION OF LICENCE At the expiration of the Term, the licence of the common law rights in the Business Name and the licence of the Trade Mark granted under clause 4 of this Agreement are terminated. 2.3 CLAUSES WHICH SURVIVE TERMINATION Clauses 4 (except for subclauses 4.2, 4.3 and 4.4), 8, 9, 12, 14 and 15 shall survive the expiry of this Agreement. 3. SPECIFICATIONS - -------------------------------------------------------------------------------- AMH shall ensure that each of the Products conforms with the Specifications for that Product. - -------------------------------------------------------------------------------- Page 4 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- 4. TRADING NAME - -------------------------------------------------------------------------------- 4.1 CTG'S COMMON LAW RIGHTS AMH acknowledges that CTG has common law rights in the Business Name and that AMH has no rights in the Business Name. 4.2 LICENCE OF COMMON LAW RIGHTS CTG grants to AMH for the duration of the Term a revocable and non-exclusive licence of CTG's common law rights in the Business Name for the purposes of the Business. Under the licence, AMH may be the registered proprietor of the Registered Business Name. 4.3 TRADE MARK LICENCE (a) CTG grants to AMH, for the duration of the Term, a revocable and non-exclusive licence to use the Trade Mark. (b) AMH may only use the Trade Mark in respect of the Products if such Products conform to the standards of manufacture and quality laid down, given or approved from time to time by CTG. (c) During the term of this Agreements and on request by CTG, AMH hereby agrees: (i) that it will supply CTG, at all reasonable times, samples or specimens or all wrappers, packaging and literature in use by AMH relating to any of the Products offered for sale by AMH; and (ii) CTG or its duly authorized representative or agent has the right to inspect the Products for which the Trade Mark is to be used and to inspect the methods of making said Products on the premises of AMH or on the premises of any sub-contractor of AMH. 4.4 PURPOSE OF LICENCE The parties acknowledge that the licences granted under clauses 4.2 and 4.3 are limited solely to the purpose of carrying on the Business and for no other purpose. 4.5 TERMINATION (a) Immediately upon the expiration of the Term, AMH will cooperate with CTG and execute and lodge all documents (including but not limited to the Form 5), and do all things necessary to have AMH's registration as proprietor of the Registered Business Name cancelled. (b) Following expiration of the Term, AMH will not, anywhere in the world: (i) claim any common law rights in; (ii) make an application for a registered trade mark for; (iii) carry on business using; (iv) make any application for any interest in a business name or company name containing, - -------------------------------------------------------------------------------- Page 5 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- the words "CTG", "CTG Rendered Products" or any derivation thereof. 4.6 POWER OF ATTORNEY AMH irrevocably appoints CTG and each director and secretary of CTG from time to time severally as its attorneys, in its name and on its behalf or otherwise, to sign, execute and do all things whatsoever which AMH ought to sign, execute and do for the purposes of clause 4.5. 5. PROVISION OF KEY PERSONS - -------------------------------------------------------------------------------- 5.1 SECONDMENT OF KEY PERSONS CTG shall second and shall procure that CTGI seconds the Key Persons who are their respective employees to AMH for the duration of the Term to provide to AMH the same services in relation to the Business as were provided by employees of CTG or CTGI seconded to AMH for a similar purpose during the 12 month period prior to the Commencement Date. 5.2 RESPONSIBILITIES OF CTG FOR KEY PERSONS CTG shall and shall procure that CTGI: (a) direct the Key Persons who are their respective employees, in performing the services listed in clause 5.1, to act in accordance with the requests and directions of AMH, provided those requests and directions are consistent with the terms of this Agreement; and (b) use reasonable endeavours to ensure that the Key Persons who are their respective employees, subject to paragraph (a); (i) perform the services set our in clause 5.1 with all skill, care and diligence to be expected from a qualified, competent and experienced person performing services of similar scope and complexity; (ii) comply with all applicable laws and requirements including all applicable permits, licences, authorisations and accreditations held by AMH and notified by AMH to the Key Persons, CTG and CTGI in writing; and (iii) comply with all AMH company policies notified by AMH to the Key Persons, CTG and CTGI in writing. 5.3 RESPONSIBILITIES OF AMH FOR KEY PERSONS (a) AMH shall indemnify and hold CTG and CTGI harmless from and against any and all costs, liabilities, losses, claims, actions, suits, proceedings or demands whatsoever (including legal fees and costs on a full indemnity basis) that may be incurred or sustained by CTG or CTGI as result of any act, omission, error or judgement (whether or not negligent or otherwise actionable) committed by a Key Person in performing the services set out in clause 5.1. (b) AMH shall effect and maintain a public liability insurance policy for not less than $10 million noting CTG and CTGI as separate insured parties and insuring each of AMH's, CTG's and CTGI's insurable interest in relation to the actions of the Key Persons in performing the services set out in clause 5.1. - -------------------------------------------------------------------------------- Page 6 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- 5.4 KEY PERSONS NOT EMPLOYEES OF AMH During the period of any secondment under this Agreement, each Key Person will remain an employee of CTG or CTGI (as the case may be). Nothing in this Agreement shall be interpreted as construing that any Key Person is an employee of AMH. 6. PRICES 6.1 NOTIFICATION OF PRICES Upon request by AMH, and, in any event if no such request is made, no later than 2 business days prior to the commencement of a Month, CTG will, or will cause the Key Persons to, calculate the Prices for each Product in accordance with Schedule 1 for that Month and for the two Months following that Month and notify AMH of those prices in the form set out in Schedule 4. 6.2 AGREEMENT OF PRICES Prior to the commencement of a Month, CTG and AMH shall use their best endeavours to agree on the Prices to apply for each Product for that Month. If the parties fail to agree a Price for a Product prior to the commencement of a Month, the Price for that Product for that Month will be the Price for that Product for the Month most recently notified by CTG to AMH pursuant to clause 6.1. 6.3 ADJUSTMENT OF PRICES TO REFLECT FREIGHT DIFFERENTIALS The parties acknowledge that certain items in Schedule 1 reflect actual freight differentials as at the Commencement Date. The parties agree to review and amend at the end of each Quarter those items set out in Schedule 1 which incorporate a freight differential so that they reflect actual freight differentials as at the end of that Quarter. In the event that the parties cannot agree the adjusted Price to reflect actual freight differentials as at the end of a particular Quarter, the freight differential shall remained unchanged. 7. CALCULATION OF PROFIT AND LOSS 7.1 MAINTAIN ACCOUNTS AMH shall maintain and keep separate accounts, books, ledgers, financial and other records in respect of the Business for each jurisdiction in which the Business is conducted. AMH shall ensure that all such accounts, books, ledgers, financial and other records in respect of the Business in each such jurisdiction: (a) are fully and properly maintained and contain accurate records of all matters required to be entered in them by generally accepted accounting principles and practices in that jurisdiction consistently applied and the provisions of this Agreement; (b) do not contain or reflect any material inaccuracies or discrepancies; (c) are sufficient to enable CTG to conduct the audits contemplated by clause 9. - -------------------------------------------------------------------------------- Page 7 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- 7.2 DEBITED AMOUNTS AMH shall cause the following amounts incurred in respect of the Business conducted in each jurisdiction to be debited to the accounts kept in respect of the Business for each such jurisdiction: (a) the Price for the Products calculated in accordance with clause 6.2; (b) costs incurred for storing Products in third party facilities for longer than 7 days (on an actual cost to AMH, without mark up, basis); (c) interest charged to AMH by third party creditors referable to the activities of the Business; (d) the Salary Amount notified to AMH by CTG pursuant to clause 8.2(c) of this Agreement; (e) all ocean freight costs for shipping of Products and all FOB costs; (f) interest on working capital at the rate charged from time to time by AMH to its debtors; (i) debtors outstanding for 21 days or more from invoice date; and (ii) inventory stored in third party facilities; provided, however, that credits shall be made to the accounts kept in respect of the Business for any interest and inventory storage charges which have not been incorporated in the pricing for such items and have been collected separately by the Business. (g) an amount equal to the salaries of staff employed by AMH to provide clerical sales support services for trading assistance to the Business for that jurisdiction (on a pro rata basis based on the number of hours worked for the Business where those employees also perform services for AMH outside of the Business); (h) the debits set out in Schedule 1. 7.3 AUSTRALIAN BUSINESS ACCOUNT ONLY In addition to the amounts listed in clause 7.2 to be debited to the account, in respect of the Business carried out in Australia (the AUSTRALIAN ACCOUNT), AMH shall cause the following amounts to be debited to the Australian Account at the end of each Quarter: (a) a fee of $64,000 per annum (applied pro rata where a relevant part or term of this Agreement is less than one year) to cover the cost of administrative support services provided by AMH in respect of the Business; and (b) an amount equal to 4.7% of AMH's costs for that Quarter (without mark up) of running its Documentation and Treasury departments (to cover the cost of services provided by those departments in respect of the Business). 7.4 CREDITED AMOUNTS AMH shall cause the amounts payable under invoices issued to the purchasers of the Products to be credited to the accounts kept in respect of the Business for each jurisdiction. 7.5 ANNUAL REVIEW OF DEBITED AMOUNTS (a) Parties to agree - -------------------------------------------------------------------------------- Page 8 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- Prior to the commencement of the second Year and each subsequent Year the parties shall use their best endeavours to agree on the amounts payable under clause 7.3(a) and 7.3(b) (the AMOUNTS) for the forthcoming year. (b) If parties cannot agree If the parties fail to agree on the Amounts before the commencement of the relevant Year then the matter will be referred to PriceWaterhouseCoopers (Brisbane Office) (the EXPERT) to be resolved by them acting as an expert. The Expert's determination of the Amounts shall be binding. (c) Amounts payable pending resolution Whilst the determination of the Amounts is being resolved by the Expert, debits shall continue to be made to the Australian account at the rates charged the previous Year for such items. (d) Expert's determination and adjustments If the Amounts agreed or determined exceed the Amounts payable under clauses 7.3(a) and 7.3(b) then AMH may deduct the difference from the Australian Account. If the Amount agreed or determined is less than the amounts debited under clauses 7.3(a) and 7.3(b), then AMH must credit the Australian Account by the amount of the difference. (e) Cost of Expert The parties must share the costs, fees and expenses of the Expert equally. 8. FEES 8.1 FEES In consideration of making available the Key Persons, AMH shall pay to CTG the Base Fee and the Bonus Fee in accordance with clause 8.6. 8.2 BASE FEE (a) The Base Fee is the total Salary Amount notified to AMH by CTG pursuant to clause 8.2(c) during the relevant Quarter, less the Adjustment (if any) calculated pursuant to paragraph (b), provided however, that the Base Fee cannot be less than zero. (b) The Adjustment is, in respect of each Quarter of each Year, an amount equal to half of the loss for that year to date less any previous Adjustment payments made in relation to that Year. (c) At the end of each Month CTG shall notify AMH of the Salary Amount. 8.3 BONUS FEE The Bonus Fee is, in respect of each Quarter of each Year, an amount equal to half of the profit for that Year to date less any previous Bonus Fee payments made in relation to that Year. - -------------------------------------------------------------------------------- Page 9 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- 8.4 INTERIM PROFIT OR LOSS STATEMENTS Within 7 days of the end of each Month, AMH will deliver to CTG a statement showing the profit or loss (as the case may be) for the preceding Month containing sufficient particulars to enable CTG to verify the profit or loss (as the case may be) for that Month. 8.5 PROFITS OR LOSSES FOR EACH YEAR Within 7 days of the expiry of each Year, AMH will deliver to CTG a statement showing the Profit or Loss (as the case may be) for that Year containing sufficient particulars to enable CTG to verify the Profit or Loss (as the case may be) for that Year. 8.6 PAYMENT OF FEES Within 10 days of the expiry of each Quarter, AMH shall pay to CTG the Base Fee and the Bonus Fee. 9. AUDIT 9.1 ACCESS TO RECORDS AMH will, upon reasonable notice by CTG, permit CTG or any other person that CTG may from time to time nominate by notice to AMH, to inspect the accounts and records kept by AMH in relation to the Business for the purpose of auditing any statement given pursuant to clause 8.4 or clause 8.5. The cost of any such audit shall be borne by CTG; provided however, that if such audit reveals a different amount of Profit or Loss for the Business, requiring additional amounts to be paid by AMH to CTG under clause 9.2, then AMH and CTG shall each pay one half (1/2) the cost of such audit. 9.2 DISCREPANCIES DISCLOSED BY AUDIT If the audit conducted pursuant to clause 9.1 reveals that a different amount of Profit or Loss (as the case may be) was generated by the Business during the Year than that shown in the statement given pursuant to clause 8.5, the amount payable under clause 8.6 will be varied accordingly as if the Profit or Loss (as the case may be) revealed by the audit was the Profit of Loss shown in that statement. 10. GST Subject to clause 10.7, the following definitions shall apply in this clause: CONSIDERATION has the meaning given by the GST Law. GST has the meaning given by the GST Law. GST AMOUNT means in relation to a Supply the amount of GST payable in respect of that Supply. GST GROUP has the meaning given by the GST Law. GST LAW has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act. - -------------------------------------------------------------------------------- Page 10 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- INPUT TAX CREDIT has the meaning given by the GST Law and a reference to an input Tax Credit entitlement of a party includes an Input Tax Credit for an acquisition made by that party but to which another member of the same GST Group is entitled under the GST Law. INVOICE has the meaning given by the GST Law. SUPPLY has the meaning given to the term Taxable Supply by the GST Law excluding the reference to section 84-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). 10.1 GST TO BE ADDED TO AMOUNTS PAYABLE If GST is payable on a Supply made under, by reference to or in connection with this Agreement, the party providing the Consideration for that Supply must also pay the GST Amount as additional Consideration. This clause does not apply to the extent that the Consideration for the Supply is expressly stated to be GST inclusive. 10.2 LIABILITY NET OF GST Any reference in the calculation of Consideration or of any indemnity, reimbursement or similar amount to a cost, expense or other liability incurred by a party, must exclude the amount of any Input Tax Credit entitlement of that party in relation to the relevant cost, expense or other liability. A party will be assumed to have an entitlement to a full Input Tax Credit unless it demonstrates otherwise prior to the date on which the Consideration must be provided. 10.3 TIMING OF THE PAYMENT OF THE GST AMOUNT Subject to having first received a Tax Invoice, the GST Amount is payable at the same time as the consideration for the Supply. 10.4 REVENUE EXCLUSIVE OF GST Any reference in this Agreement to price, value, sales, revenue or a similar amount (REVENUE), is a reference to that Revenue exclusive of GST. 10.5 COST EXCLUSIVE OF GST Any reference in this Agreement (other than in the calculation of Consideration) to cost, expense or other similar amount (COST), is a reference to that Cost exclusive of GST. 10.6 GST OBLIGATIONS TO SURVIVE TERMINATION This clause will continue to apply after expiration or termination of this Agreement. 10.7 APPLICATION TO NEW ZEALAND GST The provisions of this clause 10 shall apply with respect to the goods and services tax chargeable in accordance with the Goods and Services Tax Act (1985) (New Zealand) (the NZ ACT), save that for this purpose the terms Consideration, GST, Input Tax Credit, Supply and Tax Invoice shall have the meaning given to them in the NZ Act. - -------------------------------------------------------------------------------- Page 11 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- 11. FORCE MAJEURE Neither CTG, CTGI nor AMH shall be liable for, or deemed to be in default under this Agreement or subject to any remedies of the other party as a result of, delays or performance failures due to power failures, fire, acts of God, acts of civil or military authority, embargoes, epidemics, terrorism, strikes, riots or similar causes beyond each party's reasonable control, and without fault or negligence of CTG, CTGI or AMH. Each party shall use reasonable efforts to minimize the impact of any force majeure condition it experiences on the other party to this Agreement and to otherwise keep the other party timely advised as to minimisation and removal of such conditions. 12. NO CONSEQUENTIAL DAMAGES Subject to clause 14, in no event shall a party, or its related bodies corporate, or its affiliates or their respective officers, directors, representatives and employees be liable to the other party or its related bodies corporate, or its affiliates or their respective officers, directors, representatives and employees, whether based in contract, tort, warranty, or any other legal or equitable grounds, for any loss of the income, profit or savings or cost of capital or financing of the other party or its affiliates for any indirect, incidental or consequential damages or for any exemplary, special or punitive damages of any kind, resulting from or relating to this Agreement or the products delivered hereunder, even if the other party has been advised of the possibility of such damages. 13. RELATIONSHIP OF THE PARTIES 13.1 NO PARTNERSHIP (a) This Agreement shall not be interpreted as constituting: (i) the relationship of CTG, CTGI and AMH as a partnership, quast-partnership, association or any other relationship in which one or more of CTG, CTGI and AMH may (except as specifically provided for in this Agreement) be liable generally for the acts or omissions of any other party; or (ii) CTG, CTGI or AMH as the general agent or representative of one another with the exception of any powers of attorney specifically granted or contemplated by this Agreement. (b) In particular, but without limitation, neither CTG, CTGI nor AMH has the authority to pledge or purport to pledge the credit of the other or to make or give (or purport to make or give) any representations, warranties or undertakings for or on behalf of the other. 14. INDEMNITY AMH shall indemnify and hold CTG and CTGI harmless from and against any and all costs, liabilities, losses, claims, actions, suits, proceedings or demands whatsoever (including legal fees and costs on a full indemnity basis) which may be brought or commenced against CTG or CTGI, its related bodies corporate, its affiliates, its officers, directors, employees or agents in connection with or arising in any way out of the Products of AMH's use of the Business Name or the Trade Mark, and for any breach of AMH's obligations hereunder. - -------------------------------------------------------------------------------- Page 12 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- 15. RECALL OF PRODUCTS AMH, CTG and CTGI agree to promptly communicate about any condition or event that could result in a recall of the Products. In the event AMH, CTGI or CTG determines that a recall is required, in whole or in part, of any of the Products. AMH agrees to cooperate fully with CTG in effecting any such recall of Products. To the extent practicable, CTG agrees to give AMH advance notice of any such recall and work with AMH to coordinate such recall and, consistent with CTG's responsibilities, to minimize the impact of such recall on AMH and CTG. AMH shall bear the cost of any such recall that arises under this Agreement, including any costs or damages incurred by CTG, CTGI or the purchasers of such Products. 16. COMPLIANCE WITH LAW/TESTING AMH shall comply with all applicable laws and requirements when producing the Products, including all applicable permits, licenses, authorizations and accreditations. Notwithstanding any other provision of this Agreement, CTG and CTGI shall have no obligation to test or analyze any Product for conformance to Specifications or for any contamination, adulteration or other circumstances that may affect saleability. 17. NOTICES Any notice, demand, consent or other communication (a Notice) given or made under this Agreement: (a) must be in writing and signed by the sender or a person duly authorized by the sender; (b) must be addressed and delivered to the intended recipient at the address or fax number below or the address or fax number last notified by the intended recipient to the sender after the date of this Agreement: (i) to CTG: ConAgra Trade Group Pty Ltd: Attention: Duncan Macrae Public Officer 15 Gough Street Richmond, Victoria, 3121 Australia Fax No: 61 3 9425 2427 (ii) with a copy to ConAgra Foods, Inc; Attention: Corporate Controller One ConAgra Drive Omaha, Nebraska 68102-5001 United States of America Fax No: 402 ###-###-#### (iii) to CTGI ConAgra Trade Group, Inc: - -------------------------------------------------------------------------------- Page 13 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- Attention: Martin P Higgins BVP SFO ConAgra Trade Group, Inc ConAgra Drive Ste 5022 Omaha Nebraska, 68102-5022 United States of America Fax No: 402 ###-###-#### (iv) with a copy ConAgra Foods, Inc. to Attention: Corporate Controller One ConAgra Drive Omaha, Nebraska 68102-5001 United States of America Fax No: 402 ###-###-#### (v) to AMH: Australia Meat Holdings Pty Ltd; Attention: Mr Ken Flanders Company Secretary 175 Riverview Road Dinmore, Queensland, 4304 Australia Fax No: 61 7 3282 3629 (vi) to Swift: Swift & Company: Attention: General Counsel 1770 Promontory Circle Greeley, CO 80634 United States of America Fax No: 970 ###-###-#### (c) will be taken to be duly given or made when (i) delivered personally or (ii) sent by facsimile or reputable overnight courier. Notice by mail shall be deemed received within five (5) business days of mailing as provided herein. Notice by facsimile shall be deemed received within twenty-four hours (24) of transmittal of such facsimile. If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be taken to have been duly given or made at the commencement of business on the next business day in that place. 18. ENTIRE AGREEMENT This Agreement contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier conduct and prior agreements and understandings between the parties in connection with its subject matter. 19. ASSIGNMENT Neither party may assign the Agreement or any of its rights and obligations under this Agreement, without the prior written consent of the other party, provided however that to the extent required by - -------------------------------------------------------------------------------- Page 14 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- AMH's senior lenders, the parties shall execute and deliver such documents as may be necessary to effect a collateral assignment of the rights arising hereunder. 20. NO WAIVER No failure to exercise nor any delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing. 21. FURTHER ASSURANCES Each party must do anything (including executing agreements and documents) necessary or desirable to give full effect to this Agreement and the transactions contemplated by it. 22. NO MERGER The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction. 23. GOVERNING LAW AND JURISDICTION This Agreement is governed by the laws of Queensland. Each party submits to the jurisdiction of courts exercising jurisdiction there, and waives any right to claim that those courts are an inconvenient forum. 24. COUNTERPARTS This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument. - -------------------------------------------------------------------------------- Page 15 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- EXECUTED in EXECUTED by CONAGRA TRADE GROUP PTY LTD: /s/ GREGORY A. HECKMAN - -------------------------------- -------------------------------- Director Signature Director/Secretary Signature Gregory A. Heckman - -------------------------------- -------------------------------- Print Name Print Name EXECUTED by AUSTRALIA MEAT HOLDINGS PTY LIMITED: /s/ PETER WHITE /s/ KEN FLANDERS - -------------------------------- -------------------------------- Director Signature Secretary Signature Peter White Ken Flanders - -------------------------------- -------------------------------- Print Name Print Name EXECUTED by CONAGRA TRADE GROUP, INC: /s/ GREGORY A. HECKMAN - -------------------------------- -------------------------------- Director Signature Director/Secretary Signature Gregory A. Heckman - -------------------------------- -------------------------------- Print Name Print Name - -------------------------------------------------------------------------------- Page 16 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- SCHEDULE 1 - PRICES Prices notified to AMH by CTG will be calculated as follows: o Australian meat and bone meal will be priced on a Delivered (Brisbane) Container Terminal (DCT) basis; o Australian blood meal will be priced on an "ex piant" basis; o Australian tallow for Dinmore and Beef City will be priced on a delivered tank farm basis in Brisbane; o all tallow products for Rockhampton and Townsville will be priced on an FOB basis with full cost recovery for movement from ex works to FOB; o all Prices are to be calculate on a GST exclusive basis; o the Price for Products purchased from third parties for the purpose of onsale shall be the actual purchase price paid by AMH without markup. Pricing for Products produced by AMH at the Facilities will be as follows: Bloodmeal Dinmore Market Price ex-Dinmore plant Beef City "***" Dinmore price* Rockhampton "***" Dinmore price* Townsville Even Dinmore Price* Meat and Bone Meal Dinmore, Beef City and Rockhampton are priced off the Market Price DCT Brisbane for the relevant specification. Townsville to receive "***" than that price. The Townsville prices reflect ocean freight differentials as at the Commencement Date and are to be reviewed at the end of each Quarter pursuant to clause 6.3. Ex Works Credits Meat and Bone Meal As the pricing arrangement is on a delivered basis, tonnage that is sold on an ex works basis (domestic) will be debited back to the accounts kept in respect of the Business at the end of each Quarter as follows: Dinmore Credit "***" Beef City Credit "***" Rockhampton Credit "***" Townsville "***" These reflect actual inland freight differentials exclusive of GST as at the Commencement Date and are to be reviewed at the end of each Quarter pursuant to clause 6.3. Bloodmeal - -------------------------------------------------------------------------------- Page 17 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- As the Bloodmeal price is on an ex works basis, if blood meal is exported, the delivery charges will be debited back to the accounts kept in respect of the Business at the end of each Quarter as follows: Dinmore Debit "***" Beef City Debit "***" Rockhampton Debit "***" Townsville Debit "***" These reflect actual inland freight differentials exclusive of GST as at the Commencement Date and are to be reviewed Quarterly pursuant to clause 6.3. All Tallow Products For Dinmore, Beef City, Rockhampton and Townsville price off the Market Price Delivered Brisbane for the relevant specification. In regard to the delivery of Tallow within Australia, the accounts kept in respect of the Business will be debited for transport costs in excess of transport costs to Brisbane. Such transport rates will be considered a freight differential and will be reviewed Quarterly pursuant to clause 6.3. - -------------------------------------------------------------------------------- Page 18 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- SCHEDULE 2 - SPECIFICATIONS PRODUCT SPECIFICATIONS Bloodmeal Crude protein not less than 85% Crude fibre not more than 3% Moisture not to exceed 12% Meat and bone meal (50%) Crude protein not less than 50% Crude fat not more than 12% Crude fibre not more than 3% Phosphorous not less than 4% Calcium not more than 12% Moisture not more than 10% Meat and bone meal (45%) Crude protein not less than 45% Crude fat not more than 12% Crude fibre not more than 3% Phosphorous not less than 4% Calcium not more than 12% Moisture not more than 10% Meat and bone meal (40%) Crude protein not less than 40% Crude fat not more than 10% Crude fibre not more than 3% Phosphorous not less than 6% Calcium not more than 15% Moisture not more than 10% Edible tallow FFA not to exceed .75% FAC not to exceed 9 max MIU not to exceed .25% max Inedible tallow (prime) FFA not to exceed 1% max FAC not to exceed 11A max MIU not to exceed 1% max Bleach not to exceed .5 red max Titre 42 deg min

- -------------------------------------------------------------------------------- Page 1 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- Anti/Post mortem tallow Must pass post mortem inspection FFA not to exceed 1% max FAC not to exceed 11A max MIU not to exceed 1% max Bleach not to exceed .5 red max Titre 42 deg min Save-all tallow FFA not to exceed 55% max - -------------------------------------------------------------------------------- Page 2 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- SCHEDULE 3 - FORM 5 - -------------------------------------------------------------------------------- Page 3 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- SCHEDULE 4 - BID SHEETS WEEKLY BID SHEET CTG RENDERED PRODUCTS TALLOW DATE:
Plant Commodity (month) Tonnage Contract (month) Tonnage Contract (month) Tonnage Contract - ----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- -------- Dinmore Edible/Anti post - ----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- -------- Dinmore Inedible tallow - ----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- -------- Beef City Anti post - ----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- -------- Beef City Inedible tallow - ----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- -------- Rockhampton Inedible tallow - ----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- -------- Townsville Edible tallow - ----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- -------- Townsville Inedible tallow - ----------- ----------------- ------- ------- -------- ------- ------- -------- ------- ------- --------
Dollar @ MARKET COMMENTS: - -------------------------------------------------------------------------------- Page 4 BY-PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- WEEKLY BID SHEET CTG RENDERED PRODUCTS PROTEINS DATE:
Plant Commodity [month] Tonnage Contract [month] Tonnage Contract [month] Tonnage Contract - ----------- --------- ------- ------- -------- ------- ------- -------- ------- ------- -------- ~~Dinmore 50% MBM DCT Dinmore 40% MBM Dinmore Bloodmeal Beef City 45% MBM DCT Beef City Bloodmeal Rockhampton 45% MBM DCT Rockhampton Bloodmeal Townsville 50% MBM DCT Townsville Bloodmeal DCT~~
Dollar@ MARKET COMMENTS: - -------------------------------------------------------------------------------- Page 5 PRODUCTS MARKETING AGREEMENT - -------------------------------------------------------------------------------- SCHEDULE 5- MONTHS, QUARTERS AND YEARS
MONTHS - ------------------------------------------------- MONTH FIRST DAY OF MONTH LAST DAY OF MONTH - ----- ------------------ ----------------- 1 28-May-2003 22-Jun-2003 2 23-Jun-2003 20-Jul-2003 3 21-Jul-2003 24-Aug-2003 4 25-Aug-2003 21-Sep-2003 5 22-Sep-2003 19-Oct-2003 6 20-Oct-2003 23-Nov-2003 7 24-Nov-2003 21-Dec-2003 8 22-Dec-2003 18-Jan-2004 9 19-Jan-2004 22-Feb-2004 10 23-Feb-2004 21-Mar-2004 11 22-Mar-2004 18-Apr-2004 12 19-Apr-2004 30-May-2004 13 31-May-2004 27-Jun-2004 14 28-Jun-2004 25-Jul-2004 15 25-Jul-2004 29-Aug-2004 16 30-Aug-2004 26-Sep-2004 17 27-Sep-2004 24-Oct-2004 18 25-Oct-2004 28-Nov-2004 19 29-Nov-2004 26-Dec-2004 20 27-Dec-2004 23-Jan-2005 21 24-Jan-2005 27-Feb-2005 22 28-Feb-2005 27-Mar-2005 23 28-Mar-2005 24-Apr-2005 24 25-Apr-2005 28-May-2005 25 30-May-2005 26-Jun-2005 26 27-Jun-2005 24-Jul-2005 27 25-Jul-2005 28-Aug-2005 28 29-Aug-2005 25-Sep-2005
BY-PRODUCTS MARKETING AGREEMENT - --------------------------------------------------------------------------------
- ------------------------------------------------- MONTH FIRST DAY OF MONTH LAST DAY OF MONTH - ----- ------------------ ----------------- 29 26-Sep-2005 23-Oct-2005 30 24-Oct-2005 27-Nov-2005 31 28-Nov-2005 26-Dec-2005 32 26-Dec-2005 22-Jan-2006 33 23-Jan-2006 26-Feb-2006 34 27-Feb-2006 26-Mar-2006 35 27-Mar-2006 23-Apr-2006 36 24-Apr-2006 28-May-2006 37 29-May-2006 25-Jun-2006 38 26-Jun-2006 23-Jul-2006 39 24-Jul-2006 27-Aug-2006 40 28-Aug-2006 24-Sep-2006 41 25-Sep-2006 22-Oct-2006 42 23-Oct-2006 26-Nov-2006 43 27-Nov-2006 24-Dec-2006 44 25-Dec-2006 21-Jan-2007 45 22-Jan-2007 25-Feb-2007 46 26-Feb-2007 26-Mar-2007 47 26-Mar-2007 22-Apr-2007 48 23-Apr-2007 27-May-2007 49 28-May-2007 24-Jun-2007 50 25-Jun-2007 22-Jul-2007 51 23-Jul-2007 28-Aug-2007 52 27-Aug-2007 23-Sep-2007 53 24-Sep-2007 21-Oct-2007 54 22-Oct-2007 25-Nov-2007 55 26-Nov-2007 23-Dec-2007 56 24-Dec-2007 20-Jan-2008 57 21-Jan-2008 24-Feb-2008 58 25-Feb-2008 23-Mar-2008 59 24-Mar-2008 20-Apr-2008 60 21-Apr-2008 25-May-2008
BY-PRODUCTS MARKETING AGREEMENT - --------------------------------------------------------------------------------
- ------------------------------------------------- MONTH FIRST DAY OF MONTH LAST DAY OF MONTH - ----- ------------------ ----------------- 61 26-May-2008 22-Jun-2008 62 23-Jun-2008 20-Jul-2008 63 21-Jul-2008 24-Aug-2008 64 25-Aug-2008 21-Sep-2008 65 22-Sep-2008 19-Oct-2008 66 20-Oct-2008 23-Nov-2008 67 24-Nov-2008 21-Dec-2008 68 22-Dec-2008 18-Jan-2009 69 19-Jan-2009 22-Feb-2009 70 23-Feb-2009 22-Mar-2009 71 23-Mar-2009 19-Apr-2009 72 20-Apr-2009 31-May-2009

QUARTERS - ----------------------------------------------------------- QUARTERS FIRST DAY OF QUARTER LAST DAY OF QUARTER - -------- -------------------- ------------------- 1 26-May-2003 24-Aug-2003 2 25-Aug-2003 23-Nov-2003 3 24-Nov-2003 22-Feb-2004 4 23-Feb-2004 30-May-2004 5 31-May-2004 29-Aug-2004 6 30-Aug-2004 28-Nov-2004 7 29-Nov-2004 27-Feb-2005 8 28-Feb-2005 29-May-2005 9 30-May-2005 28-Aug-2005 10 29-Aug-2005 27-Nov-2005 11 28-Nov-2005 26-Feb-2006 12 27-Feb-2006 28-May-2006 13 29-May-2006 27-Aug-2006 14 28-Aug-2006 28-Nov-2006 15 27-Nov-2006 25-Feb-2007 16 26-Feb-2007 27-May-2007 17 28-May-2007 26-Aug-2007
BY-PRODUCTS MARKETING AGREEMENT - --------------------------------------------------------------------------------
~~18 27-Aug-2007 25-Nov-2007 19 26-Nov-2007 24-Feb-2008 20 25-Feb-2008 25-May-2008 21 26-May-2008 24-Aug-2008 22 25-Aug-2008 23-Nov-2008 23 24-Nov-2008 22-Feb-2009 24 23-Feb-2009 31-May-2009~~

YEARS - ----------------------------------------------------------- YEARS FIRST DAY OF YEAR LAST DAY OF YEAR - ----- ------------------ ---------------- ~~1 26-May-2003 30-May-2004 2 31-May-2004 29-May-2005 3 30-May-2005 28-May-2006 4 29-May-2007 27-May-2007 5 28-May-2007 25-May-2008 6 26-May-2008 31-May-2009~~