PART II
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
ITEM 3.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The Registrant incorporates by reference the documents
listed below (other than any portions thereof, which under the Securities
Exchange Act of 1934 and applicable SEC rules, are not deemed “filed” under
that Act):
·
The
Registrant’s Annual Report on Form 10-K for the fiscal year ended February 25,
2007;
·
The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended May 27,
2007;
·
The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended August
26, 2007;
·
The
Registrant’s Current Reports on Form 8-K filed March 6, 2007; March 6, 2007;
March 21, 2007; April 5, 2007; April 25, 2007 (as to Item 8.01 thereof), as
amended on April 26, 2007; May 29, 2007; June 12, 2007; June 20, 2007; July 26,
2007 and October 4, 2007 (as to Item 8.01 thereof); and
·
The
description of our common stock contained in the Registration Statement on Form
8-A filed on November 19, 2004, including any amendments or reports filed for
the purposes of updating such description.
All documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents (other than any such
documents, or portions thereof, which under the Securities Exchange Act of 1934
and applicable SEC rules, are not deemed “filed” under that Act).
ITEM 5.
INTERESTS OF
NAMED EXPERTS AND COUNSEL
Not
applicable.
ITEM 6.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (“DGCL”)
provides that a corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding whether civil, criminal or investigative (other than
an action by or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the
person in connection with such action, suit or proceeding if the person acted
in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the person’s conduct
was unlawful. Section 145 further provides that a corporation similarly may
indemnify any such person serving in any such capacity who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment
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in its favor, against
expenses (including attorneys’ fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit if the person acted
in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to
include in its certificate of incorporation a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director’s duty of loyalty to the corporation or its
stockholders, (ii) for acts or omission not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the DGCL (relating to unlawful payment of dividends and unlawful stock
purchase and redemption) or (iv) for any transaction from which the director
derived an improper personal benefit.
In accordance with the provisions of the Amended and
Restated Certificate of Incorporation and the Amended and Restated By-Laws of
UAP Holding Corp., UAP Holding Corp. shall indemnify, to the fullest extent
permitted by law, any person who is or was a party, or is threatened to be made
a party to, any threatened, pending or contemplated action, suit or other type
of proceeding (other than an action by or in our right), whether civil,
criminal, administrative, investigative or otherwise, and whether formal or
informal, by reason of the fact that such person is or was UAP Holding Corp.’s
director, officer or employee or is or was serving at UAP Holding Corp.’s
request (as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) against judgments,
amounts paid in settlement, penalties, fines (including an excise tax assessed
with respect to any employee benefit plan) and expenses (including counsel
fees) actually and reasonably incurred in connection with any such action, suit
or other proceeding, including any appeal thereof, if such person acted in good
faith and in a manner such person reasonably believed to be in, or not opposed
to, UAP Holding Corp.’s best interests and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. In addition, UAP Holding Corp. also carries insurance on behalf of
its directors, officers, employees or agents that may cover liabilities under
the Securities Act.
UAP Holding Corp. provides its directors and officers
with additional director and officer liability insurance.
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ITEM 7.
EXEMPTION FROM
REGISTRATION CLAIMED
Not
applicable.
ITEM 8.
EXHIBITS
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Exhibit No.
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Description
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4.1
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Amended and Restated Certificate of Incorporation of
UAP Holding Corp. filed with the Secretary of State of the State of Delaware
on November 17, 2004 (incorporated by reference to Exhibit 3.5 to
Amendment No. 6 to UAP Holding Corp.’s Registration Statement on Form S-1
dated November 18, 2004 (File No. 333-114278)).
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4.2
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Certificate of Elimination of Series A Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.1 to UAP Holding
Corp.’s Current Report on Form 8-K dated December 3, 2004 (File No.
000-51035)).
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4.3
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Amended and Restated By-Laws of UAP Holding Corp.
(incorporated by reference to Exhibit 3.2 to UAP Holding Corp.’s Current
Report on Form 8-K dated December 3, 2004 (File No. 000-51035)).
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5.1
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Opinion of Akin Gump Strauss Hauer & Feld LLP,
counsel to the Registrant
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15.1
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Awareness letter of Deloitte & Touche LLP
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23.1
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Consent of Deloitte & Touche LLP
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23.2
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Consent of Akin Gump Strauss Hauer & Feld LLP
(included in Exhibit 5.1)
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24.1
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Powers of Attorney (included in the signature pages)
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99.1
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UAP Holding Corp. 2007 Long-Term Incentive Plan
(incorporated by reference to Exhibit 10.1 to UAP Holding Corp.’s Quarterly
Report on Form 10-Q filed October 5, 2007 (File No. 000-51035))
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ITEM 9.
UNDERTAKINGS
(a) The Registrant hereby
undertakes:
(1) To file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement.
(2) That, for
the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for the
purpose of determining liability of the Registrant under the Securities Act to
any purchaser in the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this Registration Statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant
relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned Registrant or used or referred to by the
undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned Registrant or
its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by
the undersigned Registrant to the purchaser.
(b) The undersigned
Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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