By-Products Marketing Agreement between ConAgra Trade Group, Inc. and Swift & Company

Summary

ConAgra Trade Group, Inc. and Swift & Company entered into an agreement where Swift sells all rendered by-products from its processing facilities to ConAgra, who will market them. The agreement outlines product specifications, pricing based on USDA reports, payment terms, and operational procedures. Profits from marketing the products are split equally. The agreement runs from September 19, 2002, to May 25, 2003, and includes provisions for claims, liability, assignment, and force majeure. Both parties agree to review terms if regulations change and limit liability for consequential damages.

EX-10.10 25 d00117exv10w10.txt BY-PRODUCTS MARKETING AGREEMENT EXHIBIT 10.10 "***" - 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 THIS AGREEMENT, made this 19th day of September, 2002, by and between CONAGRA TRADE GROUP, INC, a Delaware corporation ("CTG") and SWIFT & COMPANY, a Delaware corporation ("Swift"). AGREEMENT: 1. PURCHASE OF PRODUCT. Pursuant to the terms and conditions herein, Swift hereby agrees to sell to CTG, and CTG hereby agrees to purchase from Swift, FOB the Swift processing facilities identified in Exhibit "A" attached hereto (individually, a "Facility" and, collectively, the "Facilities"), all of the rendered by-products identified in Exhibit "A" attached hereto (individually, a "Product" and, collectively, the "Products"), resulting from the processing of cattle and hogs at the Facilities. 2. SPECIFICATIONS. Specifications for all Products will follow the applicable guidelines established by the American Fats and Oils Association Standard Grades, Specifications and Quality tolerances. 3. PRICES. Except those quantities of Products, if any, that the parties agree to price forward, prices for the Products shall be calculated by the methods set forth on Exhibit "A" attached hereto and shall be based on origin weights or first official rail. Any quantities of Products which the parties agree to price forward shall be invoiced at the agreed to price at time of shipment. 4. PAYMENT. CTG shall make payment for all Product purchased hereunder from Swift by wire transfer to the account directed by Swift in writing to CTG. Payments will be made within fourteen (14) days of CTG's receipt of each invoice for Product. 5. OPERATIONAL PROCEDURES. CTG will schedule trucks and rail cars, communicate truck and rail car schedules with the Facilities, enter shipping orders, generate load number sequences and maintain open communication with the Facilities to change shipping schedules. By 8:00 a.m. Omaha time, Swift will provide CTG with written reports setting forth inventory, kill schedule and conversion for each Facility. In addition, Swift will cause each Facility to communicate directly with CTG on a daily basis with respect to any increase or decrease in production at each Facility, any changes in rail switching/car orders placed by Swift at each Facility, or changes in weight/ladings. 6. CLAIMS. Product claims will be handled by CTG and processed through Swift. CTG will have approval on all claims processed through CTG subject to Swift's consent which shall not be unreasonably withheld. Swift will have financial responsibility for all approved claims. 7. SWIFT LIABILITY. Product liability is Swift's responsibility. CTG will comply with 21 CFR Part 589, Substances prohibited from use in animal food or feed animal proteins prohibited in ruminant feed. 8. AGREEMENT REVIEW. The parties agree to review the terms and conditions of this Agreement in the event of any material change in government regulation affecting any Product. 9. TERM. This Agreement will commence on September 19, 2002 and will terminate on May 25, 2003. 10. PROFIT SHARING. Profit before tax generated from CTG's marketing of the Products shall be split equally between Swift and CTG based on CTG's cost structure for the twelve (12) month period ended Period 11 Fiscal Year 2002. CTG will account for and accumulate such profits before tax and losses during the term of this Agreement CTG shall pay Swift its share of net profits before tax (if any) in a one-time payment within ten (10) days after the termination of this Agreement or Swift shall pay CTG its share of net losses (if any) in a one-time payment within ten (10) days after the termination of this Agreement. 11. ASSIGNMENT. Neither party shall have the right to assign this Agreement, or any of its rights hereunder, without the prior written consent of the other party; provided, however, that to the extent requested by Swift'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. 12. FORCE MAJEURE. Neither CTG nor Swift shall be liable for, or deemed to be in default hereunder 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 such party's reasonable control, and without the fault or negligence of CTG or Swift. Each party shall use reasonable best 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 minimization and removal of such condition. 13. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Delaware, excluding its choice of law rules. 14. NOTICES. All notices which are required or may be given pursuant to the terms of this Agreement shall be in writing and shall be sufficient in all respects if given in writing and delivered personally or via telefacsimile or overnight courier, or mailed by Registered, Certified or Express Mail, postage prepaid, as follows: 2 (a) If to Swift: Swift & Company 1770 Promontory Circle Greeley, CO 80634 ATTN: President and Chief Executive Officer Fax: (970) 506-8323 (b) If to CTG ConAgra Trade Group, Inc. Eleven ConAgra Drive Omaha, NE 68102 ATTN: Paul Maass, Director of By- Product Merchandising Fax: (402) 978-5501 or at such other address as any party hereto shall have designated by notice in writing to the other parties hereto. 15. NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL A PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICER, DIRECTORS, REPRESENTATIVES AND EMPLOYEES BE LIABLE TO THE OTHER PARTY 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. [Signatures on next page] 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written. CONAGRA TRADE GROUP, INC. SWIFT & COMPANY By: /s/ DEBRA L. KEITH By: /s/ PATRICK J. KOLEY ------------------------------- --------------------------------- Its: Vice President - Tax Its: Vice President ------------------------------ -------------------------------- 4 EXHIBIT "A" FACILITY LOCATIONS, PRODUCTS AND PRICING FACILITY LOCATIONS. Greeley, Colorado Grand Island, Nebraska Dumas, Texas Nampa, Idaho Omaha, Nebraska Hyrum, Utah Louisville, Kentucky Marshalltown, Iowa Worthington, Minnesota PRODUCTS. Blood meal Inedible tallow Edible tallow Meat and bone meal Choice white grease Lard PRICING. The USDA Tallow, Protein and Hide Report, FOB Central U.S. daily price for each Product (USDA report NW_LS442) will be used to calculate a weekly average (Friday through Thursday). The spreads to that weekly average (defined below) will determine the purchase price for each Product at each Facility for the following week. The price and volume will be established on Thursday afternoon for the following week. Prices will be determined on a three (3) week rolling average. The Meat and Bone Meal prices reflect an upcharge to treat all MBM tons with the specified antioxidant. Bloodmeal Greeley Even Grand Island Even Dumas Even Inedible Tallow Greeley "***" Chicago Packer Tallow Grand Island "***" Chicago Packer Tallow "***" for polished inedible tallow 5 Dumas "***" Gulf Packer Tallow, if no Gulf Packer then Chicago Packer Tallow "***" Edible Tallow Greeley "***" Chicago Edible Tallow Grand Island "***" Chicago Edible Tallow Dumas "***" Gulf Edible Tallow, if no Gulf Packer then Chicago Packer Tallow "***" Meat and Bone Meal Greeley "***" Grand Island "***" Dumas "***" USDA FOB Panhandle Bloodmeal Nampa "***" Inedible Tallow Omaha "***" Nampa "***" Meat and Bone Meal Omaha ((USDA price )"***" x actual protein of Product) "***" Nampa "***" Bloodmeal Hyrum "***" Inedible Tallow Hyrum "***" Edible Tallow Hyrum "***" 6 Meat and Bone Meal Hyrum "***" Other Products produced at the Facilities that are not reflected in the USDA Tallow, Protein and Hide Report; (e.g., #2 grease, low protein meat and bone meal) shall be priced on a spot market basis mutually agreed to by the parties. SWIFT PORK COMPANY (SWIFT hog division)- The USDA Tallow, Protein, and Hide Report - FOB Central U.S. daily price for each Product (USDA report NW_LS442) will be used to calculate a weekly average (Friday through Thursday). The spreads to that weekly average (defined below) will determine the purchase price for each Product at each Facility for the following week. The price and volume will be established on Thursday afternoon for the following week. Bloodmeal (Central Price FOB) Louisville Even Marshalltown Even Worthington Even Choice White Grease (Central Price FOB) Louisville Even Marshalltown Even Worthington Even Lard (Chicago Price, FOB Facility) Louisville "***" Marshalltown "***" Worthington "***" Meat and Bone Meal Louisville Even to Pork Meat & Bone Meal Marshalltown Even to Pork Meat & Bone Meal Worthington "***" Pork Meat & Bone Meal Other Products produced by Swift's Facilities that are not reflected in the USDA Central US By-Product report (e.g., brown grease) to be priced on a spot market basis mutually agreed to by the parties. 7