Exhibit 10.1


 


SUPPLY AGREEMENT


 


(ConAgra Foods
to MGP Ingredients)


 


THIS SUPPLY
AGREEMENT (the “Agreement”), dated as of this 24th, day of October, 2008, by
and between CONAGRA FOODS FOOD INGREDIENTS COMPANY, INC., a Delaware
corporation (“SUPPLIER”), and MGP Ingredients, Inc., a Kansas corporation
(“BUYER”).


 


RECITALS:


 


(a)                                  The
BUYER desires to secure a source of supply for various ingredients whose
specifications are described in Exhibit “A” (the “Ingredients”); and


 


(b)                                 SUPPLIER
desires to sell such Ingredients to BUYER on the terms herein.


 


AGREEMENT:


 


NOW,
THEREFORE, in consideration of the premises, and the mutual covenants
hereinafter set forth, the parties hereby agree as follows:


 


1.                                       Purchase/Sale
of Ingredients.  During the term of
this Agreement BUYER shall purchase all of its requirements of the Ingredients
from SUPPLIER, and SUPPLIER shall sell to BUYER all of BUYER’s requirements of
the Ingredients as provided herein.


 


1.1          Ingredients;
Specifications.  All Ingredients
supplied hereunder shall be prepared, processed, packaged and handled in strict
accordance with the product standards and specifications which have been
furnished by SUPPLIER to BUYER (the “Specifications”) and are attached to Exhibit A.  BUYER shall have the right to make reasonable
changes to the Specifications upon 30 days prior written notice to SUPPLIER;
provided, however, that in the event of any material change in Specifications
the pricing for all affected products will be amended by the parties in writing
prior to SUPPLIER’s obligation to deliver such Ingredients.


 


1.2          Orders.  All orders for Ingredients shall be submitted
by BUYER to the sales office designated by SUPPLIER from time to time.  SUPPLIER shall confirm acceptance of BUYER’s
orders by facsimile or e-mail after receipt of BUYER’s order.  In the same communication, SUPPLIER shall
confirm with the BUYER the date of delivery of the Ingredients covered by the
order.  BUYER understands that orders
must be placed at least 7 days in advance of delivery for items covered by this
Agreement.


 


1.3          Facilities;
Equipment; Subcontractors.  SUPPLIER
shall own, lease or otherwise have available all labor, equipment, machinery
and raw materials necessary to produce, handle and package the Ingredients in
compliance with the Specifications and BUYER’s scheduling requirements.  SUPPLIER shall not 


 






*** indicates that material
deemed confidential has been omitted from this document pursuant to a request
for confidential treatment under Exchange Act Rule 24b-2 and 5 U.S.C. 552(b)(4)
and has been filed separately with the Office of the Secretary of the
Securities and Exchange Commission


 





















 


subcontract any aspect of the production of
Ingredients without prior approval from BUYER.


 


1.4          Shipment and Delivery.  All flour Ingredients sold by SUPPLIER to
BUYER hereunder shall be delivered F.O.B. BUYER’S facility unless otherwise
agreed to by both parties.  Title to and
risk of loss of the flour Ingredients shall pass from SUPPLIER to BUYER when so
delivered.


 


1.5          Product Coding.  SUPPLIER shall utilize the product coding
system as described in the Specifications and will code all Ingredients in
accordance therewith.


 


1.6          Forecasts.  On the date hereof and during the first week
of each month hereafter, BUYER shall provide SUPPLIER with written, nonbinding
forecasts of the BUYER’S purchase requirements for each of the Ingredients for
the following 3 months.


 


1.7          Credit.  Upon execution of this Agreement, BUYER shall
deposit *** with SUPPLIER.  On Monday of
each week during the Term of this Agreement, SUPPLIER will send BUYER a
statement listing the balance due for outstanding Ingredients shipments and
BUYER will pay the balance due on such statement on Tuesday of each week by
electronic funds transfer.  If either
Monday or Tuesday is a holiday, then the respective invoicing and/or payment
will be delayed to the following business day respectively.  From time to time, SUPPLIER reserves the
right to modify the credit terms extended to BUYER under this Agreement.


 


1.8          Additional Terms:  The parties hereby agree that the terms
contained in SUPPLIER’s standard Product Contract attached hereto as Exhibit C
shall serve to supplement the terms of this Agreement but this Agreement shall
control over any terms of the Product Contract that modify or contradict the
terms of this Agreement.


 


2.                                       Purchase
Price.


 


2.1          The price to be paid
by BUYER for flour Ingredients shall be based on the formulas set forth in Exhibit “B”.


 


2.2          SUPPLIER shall provide
a pricing sheet for the Ingredients on a ***basis and such pricing shall be
effective until SUPPLIER provides a new pricing sheet.  SUPPLIER agrees, at a minimum, to provide an
updated pricing sheet to BUYER *** and SUPPLIER reserves the right to update
the pricing sheet on *** basis.  The
pricing sheets will contain the current *** pricing for the Ingredients by
month for the next *** period.  The
purchase price for the Ingredients sold hereunder will be based on the ***
pricing sheet or *** pricing sheet, if 


 






*** indicates that material
deemed confidential has been omitted from this document pursuant to a request
for confidential treatment under Exchange Act Rule 24b-2 and 5 U.S.C. 552(b)(4)
and has been filed separately with the Office of the Secretary of the
Securities and Exchange Commission


 


2





















 


applicable, corresponding to the date and
time of BUYER’s order and shall be set forth in a written or electronic
confirmation which shall be subject to the terms and conditions of this
Agreement.


 


2.3          The labor components
of the margin charge will be adjusted *** by the percent changes (whether up or
down) in the Bureau of Labor and Statistics Producer Price Index for Non-farm Business
Unit Labor Cost.  The energy components
of the margin charge will be adjusted *** by the percent changes (whether up or
down) in the Bureau of Labor and Statistics Producer Price Index for Commercial
Electric Power.  Should the Bureau of
Labor and Statistics cease reporting the Producer Price Index for either of the
above indices, then the adjustments for both labor and energy shall be based on
the percentage changes in the Bureau of Labor and Statistics Producer Price
Index for Intermediate Materials, Supplies and Components.


 


3.                                       Market
Information.  An important component
of the service SUPPLIER provides to BUYER is to inform BUYER of general market
and industry conditions, including information related to the wheat
market.  SUPPLIER will provide BUYER
information on the wheat market on a weekly basis or as requested by BUYER.


 


4.                                       Term.  This Agreement shall commence on the date
hereof and continue hereafter for an initial period of five (5) years,
subject to termination as set forth in Section 7 hereof.  This Agreement shall automatically renew for
one additional period of five (5) years unless either party gives the
other written notice of termination at least one hundred and eighty (180) days
prior to the end of the initial term.


 


5.                                       Quality
Control.


 


5.1          Inspection.  BUYER (or its designated representatives)
shall, upon 48 hours’ prior written notice, during any production operations
contemplated under this Agreement, have the right to inspect the SUPPLIER’S
facilities, procedures and equipment utilized in producing the
Ingredients.  BUYER (or its designated
representatives) shall comply with all of SUPPLIER’s standard facility entry
policies and procedures.  If any such
facilities, procedures or equipment are not in accordance with applicable
procedures standard to the industry and/or the Specifications, SUPPLIER shall
take immediate action to correct such deficiencies at no cost to BUYER.  It is understood that BUYER is responsible
for the costs, and entitled to the results, of any such inspection.  SUPPLIER shall advise BUYER promptly of any
report, violation, citation or other adverse action which has been provided to
SUPPLIER by any agent or representative of any governmental agency or authority
which could reasonably be expected to adversely impact SUPPLIER’s ability to
perform its obligations under this 


 






*** indicates that material
deemed confidential has been omitted from this document pursuant to a request
for confidential treatment under Exchange Act Rule 24b-2 and 5 U.S.C. 552(b)(4)
and has been filed separately with the Office of the Secretary of the
Securities and Exchange Commission


 


3





















 


Agreement. 
No such inspections by BUYER shall relieve SUPPLIER of its obligations
under this Agreement.


 


SUPPLIER will
provide BUYER annually with a copy of its third-party food safety audit for its
facilities which provide Products to BUYER.


 


5.2          HACCP.  SUPPLIER hereby represents that it shall
produce all Ingredients pursuant to the HACCP plan currently in place at the
facilities.  At the discretion of BUYER,
SUPPLIER may be required to provide a representation on at least a semi-annual
basis that it is in compliance with the HACCP plan at the facilities.  SUPPLIER represents that it will update the
HACCP plan as required by governmental agencies and that it shall make such
updates available for review.


 


5.3          Certifications.  SUPPLIER will provide the following
certifications on annual basis as requested by BUYER:


 


a.                                       Kosher
Certificate;


b.                                      Halal
Certificate, or Halal Suitability Statement;


c.                                       Continuing
Guarantee (FDA);


d.                                      Certificate
of Origin;


e.                                       Melamine
Free Statement;


f.                                         GMO
Free Statement;


g.                                      Allergen
Statement;


h.                                      Bovine
Spongiform Encephalopathy (BSE)/Transmissible Spongiform Encephalopathy (TSE)
Free Statement;


i.                                          Residual
Pesticide Analysis (each new crop year); and


j.                                          Heavy
Metals Analysis (most current).


 


6.                                       Proprietary
Information.  Each party shall treat
as confidential all terms, pricing, specifications and other information
supplied by the other party or obtained as a result of performance under this
Agreement.  Neither party shall disclose
any information related to or disclosed under this Agreement to any person not
authorized by the other party in writing to receive it, unless required by law
to do so.  Notwithstanding the above,
neither party shall have an obligation of confidentiality with respect to
information which:  (i) was in the
public domain at the time of receipt from the other party, or which subsequently
enters into the public domain through no fault of the receiving party; (ii) was
known and can be shown to have been known by the receiving party at the time of
receipt from the other party and was not previously acquired from the other
party on a confidential basis; or (iii) becomes known to the receiving
party on a non-confidential basis through a third party whose own acquisition
and disclosure were independent of the other party.


 


7.                                       Representations
and Warranties of SUPPLIER.  SUPPLIER
warrants and represents that all Ingredients shall, upon delivery to BUYER:


 


4





















 


(a)                                  comply
with all applicable federal and state laws, rules and regulations
including, without limitation, the Federal Food, Drug and Cosmetic Act and the
Federal Meat Inspection Act;


 


(b)                                 be
goods that are articles which, under the provisions of Section 404, 505 or
512 of the Federal Food, Drug and Cosmetic Act, may be introduced into
interstate commerce;


 


(c)                                  not
be misbranded within the meaning of any federal, state or local law, when
bearing labels in accordance with the Specifications; and


 


(d)           be
unadulterated, merchantable and fit for human consumption under applicable U.S.
law, and otherwise comply with the Specifications.


 


8.                                       Default
and Termination.


 


8.1                                 Default
under this Agreement shall mean:


 


(i)            in
respect to either party:  (i) an
assignment for the benefit of creditors which is not dismissed within thirty
(30) days; or (ii) any proceeding relating to bankruptcy, insolvency or
debtor’s relief being initiated by or against such party unless such proceeding
is dismissed or this Agreement is assumed in such proceeding within sixty (60)
days;


 


(ii)           failure
by either party to fulfill any of its material obligations under this
Agreement, which in respect to SUPPLIER shall include, but not be limited to,
SUPPLIER’s failure to:  (i) timely
provide the Ingredients to BUYER; (ii) comply with the warranties set
forth in Section 6; or (iii) permit BUYER to perform the inspections
as provided herein; or


 


(iii)          failure
by either party to pay any amount due to the other within the terms agreed to
under this Agreement, unless disputed in good faith by such party.


 


8.2           The
defaulting party shall be given ten (10) days to cure a default after
receiving written notice from the non-defaulting party.  If the defaulting party fails to cure in such
ten (10) day period, the non-defaulting party may immediately terminate
this Agreement upon written notice to the defaulting party.


 


8.3           Expiration
or termination of this Agreement shall not affect any rights or obligations of
either party which have accrued through the date of termination or expiration,
or which otherwise survive termination in accordance with their respective
terms.  Nothing herein shall prevent either
party from seeking specific performance or damages for breach in respect of any
right or obligation contained in this Agreement.  The rights and remedies set forth in this Section 7
shall be in addition to any other rights or remedies that may otherwise be
available at law or equity.


 


5

















 


9.                                       Nonconforming
Ingredients; Recall.


 


9.1           Ingredient
Replacement.  BUYER shall have the
right but not the obligation to inspect, accept or reject nonconforming
Ingredients.  If so directed by BUYER in
good faith, SUPPLIER will replace at no charge to BUYER any Ingredients that
are not in compliance with the Specifications at the time of delivery to BUYER.  SUPPLIER shall complete such replacement as
soon as possible using all commercially-reasonable efforts.  The foregoing shall not limit any rights or
remedies which may otherwise be available to BUYER, and no such inspection or
acceptance of the Ingredients shall relieve SUPPLIER of its obligations
hereunder.


 


9.2           Recall
of Ingredients.  BUYER shall have the
right at any time, in its commercially reasonable discretion, to order a
recall, in whole or in part, that relates to any of the Ingredients purchased
from SUPPLIER hereunder.  BUYER and
SUPPLIER agree to promptly communicate with each other regarding any condition
or event that could result in such a recall. 
SUPPLIER agrees to cooperate fully with BUYER in effecting any such
recall of Ingredients that, at the time of delivery by SUPPLIER to BUYER, do
not conform to the Specifications or to any other representations or warranties
of SUPPLIER set forth herein.  To the
extent practicable, BUYER agrees to give SUPPLIER advance notice of any such
recall, to work with SUPPLIER to coordinate such recall and, consistent with BUYER’s
responsibilities, to minimize the impact of such recall on BUYER and
SUPPLIER.  SUPPLIER shall bear the cost
(including the replacement cost of Ingredients) of any such recall that arises
as the result of any act, omission or default that occurs or fails to occur in
respect to the Ingredients prior to delivery to BUYER.  BUYER shall bear the cost of any recall that
results from any action or inaction which affects the Ingredients after
delivery to BUYER.  SUPPLIER shall
maintain production records sufficient to enable BUYER to conduct actual or
mock recalls, as BUYER may desire.


 


10.                                 Indemnity
/ Insurance / Limitation of Liability.


 


10.1         Indemnification.  Each party (“Indemnifying Party”) shall
defend, indemnify and hold harmless the other party (“Indemnified Party”)
against and in respect of any and all liability, loss, damage, deficiency or
expense resulting from any breach of a representation, warranty, covenant or
agreement by the Indemnifying Party under this Agreement, and all actions,
suits, proceedings, claims, demands, assessments, judgments, costs and expenses
(including reasonable fees and expenses of counsel) incident to any of the
foregoing.


 


10.2         Insurance.  For purposes of the above indemnity, SUPPLIER
agrees during the term hereof and for a minimum of one (1) year thereafter
to maintain adequate public liability insurance with reputable, duly-qualified
insurance companies.  Within fifteen (15)
days of this Agreement, SUPPLIER shall furnish BUYER with a certificate of insurance
properly executed by the respective insurance company evidencing such
insurance, giving thirty (30) days notice to BUYER in 


 


6

















 


the event of cancellation or material
alternation of such coverage.  Failure to
maintain the required insurance is a material default of this Agreement which
shall permit BUYER to terminate the Agreement immediately.  The insurance coverage to be maintained
hereunder shall be as follows:


 


(i)          Commercial general
liability insurance written on an occurrence form, providing blanket
contractual liability coverage and products liability, including coverage for
terroristic acts with a “terrorism” rider, against claims for bodily injury,
death and property damage, affording minimum single limit protection of Five
Million Dollars ($5,000,000) per occurrence. 
BUYER shall be named as additional insured under this policy.


 


(ii)          Worker’s compensation
insurance in accordance with the statutory requirements of the states where
SUPPLIER conducts its operations, and employer’s liability insurance affording
minimum single limit protection of One Million Dollars ($1,000,000) with
respect to personal injury or death resulting from one occurrence.


 


10.3         Limitation
of Liability.  In no event shall either
party be liable to the other under any theory of tort, contract, strict
liability or other legal or equitable theory for any indirect, incidental,
consequential, special, exemplary, speculative or punitive damages including,
but not limited to, lost profits, regardless of whether or not advised of the
possibility of such damages.


 


11.           Ownership
of Intellectual Property and Specifications.  BUYER agrees that SUPPLIER (including its
affiliated or third-party licensors) are the sole owners of all right, title
and interest in the Specifications as well as all trademarks, trade names,
trade dress, logos, graphics, photographs, artwork and textual materials
(collectively, the ‘‘Trademarks”) used in connection with the packaging of the
Ingredients under this Agreement, and that all intellectual property rights
that may be acquired by use of the Specifications or the Trademarks shall inure
to the sole benefit of the SUPPLIER (or its licensors).  BUYER agrees to execute such further
documents as may be required to effectuate the assignment to SUPPLIER (or its
affiliated or third-party licensors) of any intellectual property rights that
BUYER may acquire in the Specifications or the Trademarks, including any
goodwill associated with the same.  BUYER
agrees that it will not, at any time, do or cause to be done any act which will
in any way impair the rights of SUPPLIER (or its licensors) in and to the
Specifications and the Trademarks.


 


12.           Continuous
Improvement:  SUPPLIER and BUYER will
work together to determine the optimal flour blends to be used in BUYER’s
manufacturing operations to improve BUYER’s products and plant
efficiencies.  This may include specific
wheat varieties as well as hard wheat and spring wheat blends.


 


13.                                 Miscellaneous.  The following miscellaneous provisions shall
apply to this Agreement:


 


7

















 


13.1         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
mailed by registered, certified or express mail, postage prepaid, or by
reputable overnight courier or sent by facsimile as follows:


 


	
  If to BUYER:

  	
  MGP
  Ingredients, Inc.

  
	
   

  	
  100
  Commercial Street

  
	
   

  	
  PO Box 130

  
	
   

  	
  Atchison, KS
  66002-0130

  
	
   

  	
   

  
	
   

  	
  Attn: Legal
  Counsel

  
	
   

  	
  Fax: 913 367
  1480

  
	
   

  	
   

  
	
  If to SUPPLIER:

  	
  ConAgra
  Foods Food Ingredients Company, Inc.

  
	
   

  	
  Eleven
  ConAgra Drive

  
	
   

  	
  Omaha, NE
  68102

  
	
   

  	
  Attn:
  President, ConAgra Mills

  
	
   

  	
  Fax: (402)
  978-5501

  
	
   

  	
   

  
	
  With a copy to:

  	
  ConAgra
  Foods Food Ingredients Company, Inc.

  
	
   

  	
  Five ConAgra
  Drive

  
	
   

  	
  Omaha, NE
  68102

  
	
   

  	
  Attn: Legal
  Department

  
	
   

  	
  Fax: (402)
  595-6149

  



 


or at such
other address as either party hereto shall have designated by notice in writing
to the other party hereto in accordance with this Section.  All such notices shall be deemed to have been
given when so delivered personally or by overnight courier, or if mailed as set
forth above, three days after the date of mailing, or if sent by facsimile,
when received.


 


13.2         Waiver.  No provision of this Agreement may be waived
by any party except in writing.  The
parties hereto agree that the waiver by any party of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of that provision by the same party, or any other provision
or condition of this Agreement.


 


13.3         Independent
Contractors.  The relationship
between BUYER and SUPPLIER shall be that of independent contractors.  This Agreement is not intended to create and shall
not be construed as creating between the parties hereto a relationship of
principal and agent, joint venturers, co-partners, or any other similar
relationship, the existence of which is hereby expressly denied by the parties.


 


13.4         Binding
Effect.  This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns.


 


13.5         Entire
Agreement.  This Agreement (including
the exhibits referenced herein) constitutes the entire agreement of the parties
with respect to the subject matter 


 


8

















 


hereof, and all prior understandings and
agreements with respect to such matter are superseded by this Agreement.  This Agreement may not be modified or amended
by additional or other terms contained on any purchase order or in any manner
except in writing duly executed by both parties.


 


13.6         Assignment.  This Agreement may not be assigned by either
party hereto without the prior written consent of the other party, which
consent will not be unreasonably withheld.


 


13.7         Governing
Law.  This Agreement shall be
governed by the internal laws of the State of Delaware without resort to such
state’s choice of law rules.


 


13.8         Force
Majeure.  Either party shall be
excused from performance under this Agreement while and solely to the extent
that such performance is prevented by an act of God, strike, war or war
condition, act of terrorism, riot, civil disorder, government regulation,
embargo, fire, flood or any other such casualty beyond the reasonable control
of such party.  In the event that either
party shall be unable to perform any of its obligations as undertaken, it shall
promptly advise the other party of its inability to perform and the reason for
such non-performance.


 


IN WITNESS
WHEREOF, the parties have each executed this Agreement as of the date first
above written:


 


	
  CONAGRA FOODS FOOD INGREDIENTS

  COMPANY, INC.

  	
   

  	
  MGP INGREDIENTS, INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Paul Maass

  	
   

  	
  By:

  	
  /s/ Timothy W. Newkirk

  
	
   

  	
   

  	
   

  
	
  Printed Name:Paul Maass

  	
   

  	
  Printed Name:Timothy W. Newkirk

  
	
   

  	
   

  	
   

  
	
  Its:President & General Manager

  	
   

  	
  Its:President & CEO

  
	
   

  	
   

  	
   

  
	
  Date:11/06/08

  	
   

  	
  Date:11/06/08

  
					



 


9

















 


EXHIBIT A


 


Ingredients


 




	
  Ingredient Code

  	
   

  	
  Ingredient Description

  	
   

  	
  Specifications

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MGP
  No. 100219

  	
   

  	
  Straight Grade Wheat Flour

  	
   

  	
  See attached.

  	
   

  






 


10
















 


Ingredient
Purchase Specification for


 


Straight
Grade Wheat Flour


 


MGP
Ingredients, Inc.® Item Number: 
800825


 


Straight Grade
Wheat Flour will be used in food grade products and hence must be manufactured
in accordance with all applicable regulations set forth by the Food, Drug and
Cosmetic Act of 1938, as amended and the Regulations issued thereunder.  The Straight Grade Wheat Flour must comply
with all applicable laws, rules and regulations of any applicable state or
respective subdivision thereof.


 


Kosher requirement:  Certified
Kosher Pareve.


 


***


 


Quality Guarantee:


The vendor shall submit with each shipment a Certificate of Analysis
(COA) verifying the conformance to the above specification.  The COA will include all analysis data for
each property listed above and MGP Ingredients’ purchase order number.  The COA shall arrive with the shipment
attached to the Bill of Lading.


 






*** indicates that material
deemed confidential has been omitted from this document pursuant to a request
for confidential treatment under Exchange Act Rule 24b-2 and 5 U.S.C. 552(b)(4)
and has been filed separately with the Office of the Secretary of the
Securities and Exchange Commission


 


11

















 


EXHIBIT B


 


***


 


***.


 


(one page omitted)


 






*** indicates that material
deemed confidential has been omitted from this document pursuant to a request
for confidential treatment under Exchange Act Rule 24b-2 and 5 U.S.C. 552(b)(4)
and has been filed separately with the Office of the Secretary of the
Securities and Exchange Commission


 


12

















 


Exhibit B


 


***


 


(one page omitted)


 


U.S. DEPARMENT OF LABOR


 


BUREAU OF LABOR STATISTICS


 


Databases, Tables & Calculators by
Subject


 


Data extracted on:  November 5,
2008


 


Major Sector
Productivity and Costs Index


 


	
  Series Id:

  	
  PRS85006113

  
	
  Duration:

  	
  Index, 1992 = 100

  
	
  Measure:

  	
  Unit Labor Costs

  
	
  Sector:

  	
  Nonfarm Business

  



 


	
  Year

  	
   

  	
  Qtr1

  	
   

  	
  Qtr2

  	
   

  	
  Qtr3

  	
   

  	
  Qtr4

  	
   

  	
  Annual

  	
   

  
	
  1998

  	
   

  	
  108.166

  	
   

  	
  109.330

  	
   

  	
  109.895

  	
   

  	
  109.885

  	
   

  	
  109.327

  	
   

  
	
  1999

  	
   

  	
  110.936

  	
   

  	
  111.132

  	
   

  	
  111.315

  	
   

  	
  111.668

  	
   

  	
  111.268

  	
   

  
	
  2000

  	
   

  	
  116.119

  	
   

  	
  114.395

  	
   

  	
  116.886

  	
   

  	
  116.436

  	
   

  	
  115.970

  	
   

  
	
  2001

  	
   

  	
  118.499

  	
   

  	
  117.583

  	
   

  	
  117.689

  	
   

  	
  116.830

  	
   

  	
  117.650

  	
   

  
	
  2002

  	
   

  	
  116.637

  	
   

  	
  117.680

  	
   

  	
  117.016

  	
   

  	
  117.095

  	
   

  	
  117.105

  	
   

  
	
  2003

  	
   

  	
  117.677

  	
   

  	
  117.965

  	
   

  	
  116.618

  	
   

  	
  117.707

  	
   

  	
  117.485

  	
   

  
	
  2004

  	
   

  	
  117.408

  	
   

  	
  117.540

  	
   

  	
  118.802

  	
   

  	
  120.176

  	
   

  	
  118.491

  	
   

  
	
  2005

  	
   

  	
  120.040

  	
   

  	
  120.527

  	
   

  	
  121.233

  	
   

  	
  122.681

  	
   

  	
  121.132

  	
   

  
	
  2006

  	
   

  	
  123.485

  	
   

  	
  123.151

  	
   

  	
  124.401

  	
   

  	
  127.148

  	
   

  	
  124.551

  	
   

  
	
  2007

  	
   

  	
  128.686

  	
   

  	
  127.653

  	
   

  	
  126.883

  	
   

  	
  128.281

  	
   

  	
  127.873

  	
   

  
	
  2008

  	
   

  	
  128.654

  	
   

  	
  128.477

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*** indicates that material
deemed confidential has been omitted from this document pursuant to a request
for confidential treatment under Exchange Act Rule 24b-2 and 5 U.S.C. 552(b)(4)
and has been filed separately with the Office of the Secretary of the
Securities and Exchange Commission


 


13

















 


EXHIBIT C


 


Product
Contract


 


See attached.


 


14

















 


Product
Contract


 


SELLER


 


	
   

  	
  CONTRACT NO.

  	
  DATED

  
	
   

  	
   

  	
   

  
	
  AGREES TO

  SELL TO

  	
  and BUYER AGREES TO BUY from Seller the following commodities (to be
  manufactured on the terms and conditions and subject to the agreements stated
  below and on the back hereof.)

  o  F.O.B. Carrier at shipment point, freight charges (basis car load
  freight rate in effect on date of this contract) to be prepaid or allowed by
  Seller.

  o  Delivered

  
	
  (Check one)   

   

  
	
   

  	
  to

  	
   

  	
  (Specify destination point)

  
	
  BUYER

  	
   

  	
   

  
					



 


 


 


 


*AUTOMATIC INCREASE IN PRICE IN CERTAIN CASES:  If
the time of shipment herein specified under caption “Time of Shipment” is a
longer period than sixty (60) days from the date hereof, then in such case on
installment of this contract shipped after sixty (60) days from the date hereof
and prior to the time fixed herein for final shipment under said caption, it is
agreed that the basic price above specified per cwt. of flour made from wheat
or rye shall be automatically increased                                      cents per
day, commencing on the sixty first (61) day after the date hereof, and
continuing until date of shipment


within said time fixed herein for final shipment.


CHANGES; ADJUSTMENTS; LIMITATIONS:  Buyer
may direct shipment of all or any part of said flour in containers of a
different size or kind than specified in the above column headed “Containers”
if any are therein specified, or in containers if “Bulk” is specified in said
column, in either which case the price shall be adjusted in accordance with
Seller’s package differential schedule in effect at date hereof.  If “Bulk” is specified in said column, Seller
nevertheless shall not be obligated to ship in bulk unless so specified under
the caption “Mode of Shipment” below and then only as therein specified.


 


TIME OF SHIPMENT


	
  On direction to be furnished by Buyer shipment is to be made as
  follows:

  	
   

  
	
  TERMS

  	
  DRAFT

  	
   

  	
  BANK OF

  	
   

  
						



 


	
  RR DELIVERY AT DESTINATION

  	
  (Seller shall have the options as to routing

  
	
   

  	
  except as to the delivering carrier)

  
	
  MODE OF SHIPMENT

  	
  (Specify whether CL, LCL, split car, mixed car, truck,

  
	
   

  	
  boat, barge, bulk R.R. car or bulk truck)

  



 


If shipments in bulk are
specified in this paragraph, Seller may nevertheless be required to make bulk
shipments only to one or more of the following destinations:


	
  BY RAILROAD

  	
  BY TRUCK

  



 


This contract constitutes the
complete agreement between the parties hereto; and cannot be changed in any
manner except in writing subscribed by Buyer and Seller on their duly
authorized officers.  CONDITIONS
CONTINUED ON THE BACK HEREOF.


 


This contract is subject to
confirmation by the seller at OMAHA, NEBRASKA


 


	
  CONAGRA FOODS SELLER

  	
   

  
	
  BY

  	
   

  	
  BUYER

  	
   

  
	
   

  	
  BY

  	
   

  
	
  CONFIRMED BY:

  	
   

  	
  DATE

  	
   

  
	
  CONAGRA FOODS SELLER

  	
   

  
							



 


15

















 


TERMS AND
CONDITIONS (Continued from the front)


 


NET WEIGHTS:  The commodities covered by this contract are
sold on the basis of net weights when packed, or, if shipped in bulk, net
weights when loaded.


 


COLLECTIONS:  Where Buyer designates the collecting bank he
shall be responsible to Seller for any loss or damage to Seller by reason of
any failure or default, on the part of said bank in connection with payment by
Buyer under this contract.


 


TAXES AND FREIGHT
RATES:  Any and all increases, changes,
adjustments or surcharges (including, without limitation, fuel surcharges)
which may be in connection with the freight charges, rates or classifications
included as part of this contract, shall be for the Buyer’s account.  The prices set forth in the within contract
include any and all taxes, impositions, exactions, or charges of every nature
in effect on the date of the execution hereof. 
Any and all taxes, impositions, executions, or charges, or any increase
therein, whether for revenue or for regulation of commerce, or for any other
purpose, not in effect on the date of this contract, which may, prior to the
completion of deliveries hereunder, be levied, imposed, required, or increased
by the United States or any State thereof or other Governmental agency on or
measured in terms of any of the finished products remaining unshipped and which
are to be delivered hereunder, or on or measured in terms of any commodity used
in the manufacture of such containers, or the processing, purchase, sale,
holding for sale, distribution, dealing in, transportation, use or handling of
any of such products, commodities or containers, if paid or borne by Seller
directly or indirectly shall be billed separately to Buyer, where not
prohibited by law, and where the determination of the amount of the tax,
imposition, exaction, charge or increase per cwt. or other unit of measure is
possible of calculation by the application of any official published conversion
rate or otherwise, and shall be paid by Buyer to Seller.  Any of such taxes, impositions, exactions,
charges or increases which the Seller shall be finally relieved from paying or
which shall be later refunded or returned to Seller at any time and for any
cause shall be refunded or credited to Buyer by Seller as promptly as possible
after deduction by Seller of any reasonable expenses incurred in preventing collection
of such taxes, impositions, exactions, charges or increases or in obtaining or
securing such refunds or returns and in making such reimbursement to Buyer, and
after paying and discharging all tax liabilities to which Seller may be
subjected by reason of its having been relieved from paying such taxes,
impositions, exactions, charges or increases or having secured such refunds or
returns.  Seller shall be under no
obligation to contest the validity of any such tax, 


 


16

















 


imposition, exaction, charge
or increase or to prosecute any such claims for refunds or returns, but in the
event Seller does not elect to contest such taxes, impositions, exactions,
charges or increases, or to prosecute such claims for refunds, Buyer shall be
entitled to an assignment or mutually acceptable conditions of all to Seller’s
rights and causes of action in the premises.


 


SHIPMENTS:  When the basis of shipment is F.O.B. delivery
of goods by the Seller to the carrier at point of shipment shall constitute
delivery to Buyer, subject to the lien of Seller for the unpaid purchase
price.  Buyer shall furnish Seller
complete shipping instructions (and when required, the necessary containers) at
least ten (10) days before the time of shipment.  If there is more than one installment of
goods shipped or stipulated herein to be shipped, the contract shall be
construed to be severable as to each installment, except where such
construction would be in direct conflict with the provisions hereinafter set
forth under “Rights of Buyer” and “Rights of Seller”, and breach or default of
either Buyer or Seller as to any installment or installments shall not give the
other party a right to cancel this contract, except as herein otherwise
expressly provided.


 


WARRANTY:  Seller expressly warrants that any goods
contracted herein will be representative of the brand or grade specified herein
to be sold, and will comply with all the applicable provisions of the Federal
Food, Drug and Cosmetic Act and to any applicable State Pure Food and Drug
Act.  Buyer hereby waives any claim or
defense based on the quality of the commodities specified herein, unless (1) within
ten (10) days after Buyer learns by use of otherwise of the defect
complained of, but in any event within forty-five (45) days after receipt of
notice of arrival of said commodities at destination Buyer sends Seller at
Seller’s main office a letter by registered mail specifying the nature of the
complaint and (2) within said forty-five (45) days sends by parcel post or
express prepaid to Seller’s said office a five (5) pound sample of the
goods alleged to be defective or inferior, provided that compliance by Buyer
with the above enumerated steps shall not constitute an admission by Seller of
the merits or amounts of Buyer’s said claim or defense.


 


RIGHTS OF BUYER:  In case of default by seller (provided that
Seller shall, without limitation, be in “default” if Seller becomes insolvent
or is adjudged bankrupt, or if at any time the property and assets of Seller
are in liquidation, or if Seller’s financial responsibility becomes impaired,
but that Seller shall not be in “default” for non-performance due to fire,
flood, earthquake, tornado, labor difficulties, riot, federal or state laws or
regulations, acts or defaults by common carriers, shortage of necessary bulk
trucks or bulk railroad cars unless Buyer has furnished Seller with shipping
instructions at least twenty (20) days prior to time of shipment, or Act of God
or the public 


 


17

















 


enemy).  Buyer may (within thirty (30) days after he
has knowledge thereof) by written notice sent by registered mail to Seller at
Seller’s main office:


 


1)              cancel the contract, or,


 


2)              terminate the contract as to the portion thereof
in default and purchase within said thirty (30) days an equal quantity of goods
of the same kind and grade and recover from Seller the excess of the price so
paid over the purchase price named herein, plus any incidental loss or expense,
and in addition thereto, recover a sum equal to one per cent (1%) of the
contract price named herein; or,


 


3)              terminate the contract as to any unshipped
balance, and recover from Seller as liquidated damages a sum to be computed by
the following formula:  (a) one per
cent (1%) of the per cwt. contract price named herein multiplied by the number
of cwts remaining unshipped, plus (b) amount of rise, if any, per bushel
in the market value of cash wheat or rye, as the case may be in carload lots at
Seller’s mill between date of contract and date of termination multiplied by
two and thirty-five hundredths (2.35) times the number of cwts. remaining
unshipped.  In case of a decline in such
value of such wheat or rye between said dates, Buyer shall recover the sum
specified in (a) less the amount of such decline per bushel multiplied by
two and thirty-five hundredths (2.35) times the number of cwts remaining
unshipped.  Such amount shall be credited
to the amount provided in (b) solely in reduction of damages.


 


Provided:  That if the default consists of a failure by
Seller to ship at the time required, Buyer may cancel or terminate the contract
as above provided only after giving Seller preliminary written notice of
intention to cancel or terminate by registered mail addressed to the Seller’s
main office.  If Seller does not ship
within eight (8) days after mailing of such notice, then Buyer may, within
thirty (30) days after the expiration of said eight (8) days, cancel or
terminate the contract as above provided.


 


RIGHTS OF SELLER:  In case of default by Buyer (provided that
Buyer shall, without limitation, be in “default” if Buyer becomes insolvent or
is adjudged bankrupt, or if Buyer shall fail to make any payment to Seller when
due under this or any other contract between Buyer and Seller or if at any time
the property and assets of Buyer are in liquidation if Buyer’s financial
responsibility becomes impaired, but as to any unshipped balance hereunder
Buyer shall not be in “default” for delay in performance due to fire, flood,
earthquake, tornado, labor difficulties, riot, federal or state laws or
regulations, acts or defaults or common carriers, or act of God or the public
enemy), Seller 


 


18

















 


may within thirty (30) days
after he has knowledge thereof) by written notice send by registered mail to
Buyer at Buyer’s main office:


 


1)              cancel the contract; or,


 


2)              terminate the contract as to the portion
thereof in default or as to any unshipped balance, or both, and


 


A)          resell, within said thirty (30) days any of the above goods which have
been shipped and which Buyer has wrongfully failed or refused to accept and
recover from Buyer differences between the above purchase price thereof, and
the price obtained on resale, if latter be less than former; also any
incidental loss and expense, including salesmen’s times and expense in
connection with such resale, and all demurrage (resale anywhere in the usual
course of Seller’s business or at any terminal market or at or near destination
shall be proper and conclusive in the absence of bad faith) and


 


B)            If Seller terminates as to unshipped balance,
recover from Buyer as liquidated damages a sum to be computed by the following
formula: (a) (see percentage on front of contract) per day for each day
from date of contract to date of termination for each cwt. remaining unshipped,
plus (b) ten (10¢) cents for each cwt. remaining unshipped as the cost of
selling, plus (c) amount of decline, if any, per bushel in the market
value of cash wheat or rye, as the case may be, in carload lots at Seller’s
mill between date of contract and date of termination multiplied by two and
thirty-five hundredths (2.35) times the number of cwts. remaining
unshipped.  In case of a rise in such
value of such wheat or rye between said dates, Seller shall recover the sums
specified in (a) and (b), less the amount of such rise per bushel
multiplied by two and thirty-five hundredths (2.35) times the number of cwts.
remaining unshipped.  Such amount shall
be credited to the amounts provided in a (a) and (b) solely in
reduction of damages.


 


Provided: That if the
default consists of a failure by Buyer to provide shipping instructions as
required “Shipments,” Seller may cancel or terminate the contract as above
provided only after giving Buyer preliminary written notice of intention to
cancel or terminate, by registered mail addressed to Buyer’s main office.  If Buyer does not provide, within eight (8) days
after mailing of such notice, shipping instructions for immediate delivery of
all past due shipments, then Seller may, within thirty (30) days after the
expiration of said eight (8) days period such shipping instructions for
immediate delivery, Seller shall have at least ten (10 days after receipt
thereof instructions for immediate delivery. 
Seller shall have at least ten (10) days after receipt thereof
within which to ship and shall and 


 


19

















 


have such additional time as
may in Seller’s sole discretion by reasonably necessary, having in mind the
Seller’s then milling operations and requirements.


 


PROVISIONS FOR AUTOMATIC
EXTENSION:  If Buyer shall fail to
furnish complete shipping instructions (and when required, the necessary
containers) to reach Seller at his main office ten (10) days before the
date for any shipment specified herein, or before the final date specified for
shipment, as the case may be, and if Buyer shall fail to notify Seller that he
does not intend to accept any further deliveries under this contract, then
(unless Seller elects to exercise his right to cancel or terminate the
contract) this contract as to such shipment, or shipments shall without notice
automatically be extended from day to day until Buyer furnishes complete
shipping instructions (and when required, the necessary containers), in
accordance with the provisions of paragraph entitled “Shipment” or until Buyer
notifies Seller that he does not intend to accept any further deliveries under
this contract, or until Seller exercises his right provided herein to cancel or
terminate the contract; and for each day during which the contract is thus
automatically extended Buyer will pay Seller carrying charges at the rate of
(see percentage on front of contract) per cwt. per day.


 


LIMITATIONS OF ACTIONS: No
action at law or in equity shall be maintained by Buyer against Seller or any
of Seller’s other vendees to recover damages for alleged violation of Seller or
said vendee of any law, Federal or State, now in effect or hereinafter enacted,
pertaining to discrimination in price, services or facilities including the
Cayton Act (U.S.C. Title 15 Secs. 12 to 27 inclusive) as amended by Act of
Congress approved June 19, 1936, or any further amendment thereto, as
respects any products delivered by Seller to Buyer pursuant to this contract
unless (1) written notice of the particular deliveries on which the claim
for such damages is based shall be given by Buyer to Seller at Seller’s main
office by registered mail within six (6) months after delivery thereof to
Buyer with a full statement of the particulars to such claim then known to
Buyer, and (2) action shall be commenced within one (1) year after
delivery of such products to Buyer.


 


20