Exhibit 10.17
UAP HOLDING CORP.
2003 DEFERRED COMPENSATION
PLAN
The UAP Holding Corp. 2003 Deferred
Compensation Plan (the “ Plan ”) has been
adopted by UAP Holding Corp., a corporation organized under the
laws of the state of Delaware, effective as of the Effective Date
(as hereinafter defined), for the benefit of its eligible
employees. The Plan is a nonqualified deferred compensation plan
pursuant to which the Company (as hereinafter defined) and its
Affiliates may defer compensation on behalf of certain employees.
The Plan is maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees, within the meaning of Sections 201(2),
301(a)(3) and 401(a)(1) of the Employee Retirement Income Security
Act of 1974, as amended.
ARTICLE I
DEFINITIONS
The following words and phrases used
in this Plan shall have the respective meanings set forth below
unless the context clearly indicates to the contrary. Wherever
appropriate herein, words used in the singular shall be considered
to include the plural, words used in the plural shall be considered
to include the singular, and the masculine gender shall be deemed
to include the feminine gender.
Section 1.1 “
Administrator ” shall mean the Company acting through
the Board or any Person to whom it delegates its authority pursuant
to Article VI.
Section 1.2 “ Affiliate
” shall mean with respect to any Person, any other Person
that, directly or indirectly through one or more intermediaries
Controls, is Controlled by, or is under common Control with, such
Person and/or one or more Affiliates thereof. The term
“Control” includes, without limitation, the possession,
directly or indirectly, of the power to direct the management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. The term
“Affiliate” shall not include at any time any portfolio
companies of Apollo Management V, L.P. or its
Affiliates.
Section 1.3 “ Board
” shall mean the Board of Directors of the
Company.
Section 1.4 “ Cause
” shall mean: (a) if a Participant is at the time of
termination a party to an employment or retention agreement with
the Company which defines such term, the meaning given therein, and
(b) in all other cases, a Participant’s (i) commission of a
crime of moral turpitude or a felony that involves financial
misconduct or moral turpitude or has resulted, or reasonably could
be expected to result, in any adverse publicity regarding the
Participant or the Company or economic injury to the Company, (ii)
dishonesty or willful commission or omission of any action that has
resulted, or reasonably could be expected to result, in any adverse
publicity regarding the Participant or the Company or has caused,
or reasonably could be expected to cause, demonstrable and serious
economic injury to the Company or (iii) material breach of this
Agreement or any other agreement entered into between the
Participant and the Company or any of its subsidiaries or
Affiliates after notice and a reasonable opportunity to
cure
(if such breach can be cured). For purposes
hereof, no act or omission shall be considered willful unless
committed in bad faith or without a reasonable belief that the act
or omission was in the best interests of the Company. For purposes
of this Agreement, “without Cause” shall mean a
termination by the Company of the Participant’s employment
during such Participant’s Employment Period (as defined in
such Participant’s Retention Agreement) for any reason other
than a termination based upon Cause, death or Disability (as
defined in such Participant’s Retention
Agreement).
Section 1.5 “ Closing
Date ” shall mean the date on which the Proposed
Acquisition is consummated.
Section 1.6 “ Common
Stock ” shall mean shares of Company’s common
stock, par value $0.001 per share.
Section 1.7 “ Company
” shall mean UAP Holding Corp., a Delaware
corporation.
Section 1.8 “ Deferred
Common Stock Unit ” shall mean the right of a Participant
to receive one share of Common Stock as of the Distribution Date in
accordance with Article V.
Section 1.9 “ Deferred
Compensation Account ” of a Participant shall mean the
bookkeeping account established on behalf of the Participant in
accordance with Section 3.1 .
Section 1.10 “ Deferred
Preferred Stock Unit ” shall mean the right of a
Participant to receive one share of Preferred Stock as of the
Distribution Date in accordance with Article V.
Section 1.11 “ Distribution
Date ” shall mean the date on which the event described
in Section 5.1 shall occur.
Section 1.12 “ Effective
Date ” means the effective date of the Plan which shall
be the Closing Date.
Section 1.13 “ Exit
Event ” shall be deemed to have occurred (i) at any time
after the consummation of an initial public offering of Common
Stock of the Company under the Securities Act of 1933, as amended,
if, at such time, any person (as defined in Section 13(d)(3) of the
Securities and Exchange Act of 1934, as amended), other than the
Investors and their Affiliates, shall directly or indirectly
acquire more than 30% of the voting power of the Common Stock (on a
fully-diluted basis) of the Company, (ii) at any time prior to the
consummation of an initial public offering of Common Stock of the
Company under the Securities Act of 1933, as amended, if, at such
time, any person (as defined in Section 13(d)(3) of the Securities
and Exchange Act of 1934, as amended), other than the Investors and
their Affiliates, shall directly or indirectly acquire more than
50% of the voting power of the Common Stock (on a fully-diluted
basis) of the Company, (iii) upon consummation of a merger or
consolidation of the Company into or with another corporation in
which the shareholders of the Company immediately prior to the
consummation of such transaction shall own less than 50% of the
voting securities of the surviving corporation (or the parent
corporation of the surviving corporation where the surviving
corporation is wholly-owned by the parent corporation) immediately
following the consummation of such transaction, (iv) the sale,
transfer or lease (but not including a transfer or lease by pledge
or mortgage to a bona fide lender) of all or substantially all of
the assets of the Company or (v) any change of control (or similar
event, however denominated) with respect to the Company
shall
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occur under and as defined in any indenture or
agreement to which the Company or any of its subsidiaries is a
party with respect to indebtedness for borrowed money in the excess
of the aggregate principal amount of $100,000,000.
Section 1.14 “ Fund
” shall have the meaning set forth in Section 3.4
.
Section 1.15 “ Good
Reason ” shall mean (i) the assignment to the Participant
of any duties inconsistent in any respect with the
Participant’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Section 2(a) of such Participant’s Retention
Agreement or any other action by the Company which results in a
material diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Participant, (ii) without limiting the
generality of the foregoing, any material breach by the Company or
any of its subsidiaries or other Affiliates of (a) this Agreement
or (b) any other agreement between the Participant and the Company
or any such subsidiary or other Affiliate, which material breach is
not remedied by the Company promptly after receipt of notice
thereof given by the Participant or (iii) any other events set
forth on the signature page to such Participant’s Retention
Agreement; provided , however , that the Participant
agrees not to terminate his employment for Good Reason if, after
notice and a reasonable opportunity to cure, the Company has
remedied such facts and circumstances constituting Good
Reason.
Section 1.16 “
Investors ” shall mean Apollo Investment Fund V, L.P.,
a Delaware limited partnership, Apollo Overseas Partners V, L.P., a
Cayman Islands exempted limited partnership, or any investment fund
managed by Apollo Management V, L.P. or any of its Affiliates, and
any of its successors and assigns.
Section 1.17 “
Investors’ Common Stock Investment Ratio ” shall
mean, as of the Closing Date, the ratio of (a) the aggregate value
as of such date of shares of Common Stock purchased (directly or
indirectly) by the Investors as of the Closing Date to (b) the sum
of (i) the aggregate value as of such date of shares of Common
Stock purchased (directly or indirectly) by the Investors as of the
Closing Date and (ii) the aggregate value as of such date of shares
of Preferred Stock purchased (directly or indirectly) by the
Investors as of the Closing Date.
Section 1.18 “
Investors’ Common Stock Acquisition Consideration
” shall mean the acquisition consideration per share of
Common Stock paid by the Investors as of the Closing Date, subject
to appropriate adjustment by the Administrator for stock splits,
stock dividends, combinations and similar transactions.
Section 1.19 “
Investors’ Preferred Stock Investment Ratio ”
shall mean, as of the Closing Date, the ratio of (a) the aggregate
value as of such date of shares of Preferred Stock purchased
(directly or indirectly) by the Investors as of the Closing Date to
(b) the sum of (i) the aggregate value as of such date of shares of
Common Stock purchased (directly or indirectly) by the Investors as
of the Closing Date and (ii) the aggregate value as of such date of
shares of Preferred Stock purchased (directly or indirectly) by the
Investors as of the Closing Date.
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Section 1.20 “
Investors’ Preferred Stock Acquisition Consideration
” shall mean the acquisition consideration per share of
Preferred Stock paid by the Investors as of the Closing Date,
subject to appropriate adjustment by the Administrator for stock
splits, stock dividends, combinations and similar
transactions.
Section 1.21 “
Participant ” shall mean any person included in the
Plan as provided in Article II.
Section 1.22 “ Person
” shall be construed broadly and shall include, without
limitation, an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a
trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political
subdivision thereof.
Section 1.23 “ Plan
” shall mean the UAP Holding Corp. 2003 Deferred Compensation
Plan, as set forth in this document and as it may hereafter be
amended from time to time.
Section 1.24 “ Preferred
Stock ” shall mean shares of any class of the
Company’s Series B Redeemable Preferred Stock, par value
$0.001 per share.
Section 1.25 “ Proposed
Acquisition ” shall mean that certain proposed
acquisition of the capital stock of United Agri Products, Inc. and
one or more of its Affiliates by the Investors.
Section 1.26 “ Proposed
Acquisition Agreement ” shall mean the agreement
effectuating the Proposed Acquisition, as it may be revised or
amended from time to time.
Section 1.27 “ Proposed
Investor Rights Agreement ” shall mean that certain
Investor Rights Agreement to be entered into in connection with the
Proposed Acquisition, as it may be revised or amended from time to
time.
Section 1.28 “ Retention
Agreement ” with respect to any Person shall mean the
Retention Agreement dated as of the Closing Date between such
Person and the Company or any other agreement entered into between
any Person and the Company which sets forth all, or a portion of,
the terms of such Person’s employment or other relationship
with the Company.
Section 1.29 “ Retention
Bonus ” shall mean that portion of consideration received
by a Participant on the Closing Date, or on any other date upon
which a Participant’s Retention Agreement otherwise becomes
effective, that is credited to such Participant’s Deferred
Compensation Account in accordance with Section 2.2 of the
Plan.
Section 1.30 “
Subsidiary ” means “Subsidiary
Corporation,”
