Exhibit 10.1
TRANSITION SERVICES AGREEMENT
THIS AGREEMENT
(the “ Agreement ”) for the performance of
transition services is dated as of June 27, 2005, between Dean
Foods Company (“ Dean ”), a Delaware
corporation, and TreeHouse Foods, Inc. (“ TreeHouse
”), a Delaware corporation.
WHEREAS, Dean,
through its subsidiaries, operates the Specialty Foods Group,
MochaMix ®, SecondNature ®, and food
service dressings businesses (the “ Transferred
Businesses ”);
WHEREAS, the Board
of Directors of Dean has determined that it would be advisable and
in the best interests of Dean and its stockholders for Dean to
transfer and assign, or cause to be transferred and assigned, to
TreeHouse the business, operations, assets and liabilities related
to the Transferred Businesses;
WHEREAS, Dean
desires to transfer and assign, or cause to be transferred or
assigned, to the TreeHouse Parties the assets and properties of the
Transferred Businesses and the TreeHouse Parties desire to accept
the transfer and assignment of such assets and to assume, or cause
to be assumed, the liabilities and obligations arising out of or
relating to the Transferred Businesses;
WHEREAS, the date
on which the above transaction is to become effective is referred
to as the “Distribution Date” as defined in that
certain Distribution Agreement between Dean and TreeHouse, dated as
of the date hereof (the “ Distribution Agreement
”); and
WHEREAS, the
parties hereto deem it to be appropriate and in the best interests
of TreeHouse and Dean that Dean provide certain services to
TreeHouse to facilitate the transaction described above on the
terms and conditions set forth herein;
NOW, THEREFORE, in
consideration of the mutual promises contained herein, the parties
hereto agree as follows:
1.
Description of Dean Services . Dean shall, subject to the
terms and provisions of this Agreement:
(a) provide
TreeHouse with general services of a financial, technical,
commercial, administrative and/or advisory nature, with respect to
the Transferred Businesses, as set forth on Exhibit A
hereto; and ,
(b) render
such other specific services as TreeHouse may from time to time
reasonably request, subject to Dean’s sole discretion and its
being in a position to supply such additional services at the time
of such request.
Unless otherwise specifically
provided on Exhibit A , Dean will provide each of the
services until December 31, 2005, or such later date as
mutually agreed in writing by the parties. TreeHouse may, at its
option, upon no less than thirty (30) days prior written
notice to Dean (or such other period as the parties may mutually
agree in writing), terminate all or any category of such
services.
2.
Consideration for Dean Services . TreeHouse shall pay Dean
in accordance with this Section 2 and Dean shall accept as
consideration for the services rendered to TreeHouse hereunder the
following service charges:
(a) for the
services rendered by Dean for or on behalf of TreeHouse pursuant to
Section 1(a), TreeHouse will be charged Dean’s cost for
each applicable service;
(b) for the
services rendered by Dean for or on behalf of TreeHouse pursuant to
Section 1(b), TreeHouse will be charged certain fees to be
negotiated and agreed to by the parties at the time such services
are requested.
3. Terms
of Payment . Dean shall submit in writing an invoice covering
its charges to TreeHouse for services rendered hereunder. Such
invoice shall be submitted on a monthly basis and shall contain a
summary description of the charges and services rendered. Payment
shall be made no later than thirty (30) days after the invoice
date.
4. Method
of Payment . All amounts payable by TreeHouse for the services
described on Exhibit A shall be remitted to Dean in
United States dollars in the form of a check or wire transfer to a
bank designated in the invoice or otherwise in writing by
Dean.
5.
WARRANTIES . THIS IS A SERVICES AGREEMENT. EXCEPT AS
EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES OR GUARANTIES, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A
PARTICULAR PURPOSE.
6.
Standard of Conduct; Limitation on Liability .
(a) Dean
shall have no liability with respect to its furnishing of services
hereunder to TreeHouse except on account of Dean’s gross
negligence or willful misconduct.
(b) In no
event shall either party have any liability, whether based on
contract, tort (including, without limitation, negligence),
warranty or any other legal or equitable grounds, for any punitive,
conse
