CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT ("Agreement") is made and entered into
effective the 22nd day of November, 1999, by and between REDBALL, LLC, a
Minnesota limited liability company (the "Company") and AG-CHEM EQUIPMENT CO.,
INC., a Minnesota corporation (the "Contributor").
RECITALS
WHEREAS, the Contributor desires to acquire a total of one hundred
thousand (100,000) membership units (the "Membership Units") of the Company in
exchange for the contribution of One Million Dollars ($1,000,000) to the Company
by the Contributor; and
WHEREAS, the Company is willing to issue the Membership Units to the
Contributor subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals, the capital
contribution contemplated herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged the parties hereto
agree as follows:
1.) Contribution. The Contributor hereby contributes to the Company
(the "Contribution") One Million Dollars ($1,000,000) in consideration for the
Membership Units and subject to the execution of the Member Control Agreement of
even date herewith (the "Member Control Agreement").
2.) Assumption of Liabilities. In connection with the Contribution, the
Company shall not assume any obligations of the Contributor of any kind or
nature whatsoever.
3.) Terms Governing Membership Units. The Contributor acknowledges that
the Membership Units, and all of the Contributor's rights in the Company, shall
be subject to and controlled by the terms of the Member Control Agreement, the
Company's Articles of Organization, the Company's Operating Agreement (if any)
and the Minnesota Limited Liability Company Act, Chapter 322B of the Minnesota
Statutes. Without limiting the foregoing, the Contributor acknowledges that the
Membership Units are not freely transferable and may, in fact, be prohibited
from sale for an extended period of time and that, as a consequence thereof, the
Contributor must bear the economic risk of an investment in the Membership Units
for an indefinite period of time and may have extremely limited opportunities to
dispose of the Membership Units.
4.) Representations and Warranties of the Contributor. The Contributor
represents and warrants to the Company as follows:
(a) No Conflict; Required Consents. To the best of the Contributor's
knowledge, the execution and delivery by the Contributor of this
Agreement, the Member Control Agreement or any other document related
thereto and the consummation by the Contributor of the transactions
contemplated thereby do not and will not: (a) require the consent,
approval or action of, or any filing or notice to, any corporation,
firm, person or other entity or any public, governmental or judicial
authority; (b) violate the terms of any instrument, document or
agreement to which the Contributor is a party or by which the
Contributor or the property of the Contributor is bound, or be in
conflict with, result in a breach of or constitute (upon the giving of
notice or lapse of time or both) a default under any such instrument,
document or agreement; or (c) violate any order, writ, injunction,
decree, judgment, ruling, law, rule or regulation of any federal,
state, county, municipal, or foreign court or governmental authority
applicable to the Contributor relating to the Contribution.
(b) Compliance with Laws. INTENTIONALLY OMITTED.
(c) Assets. INTENTIONALLY OMITTED.
(d) Title to Assets. INTENTIONALLY OMITTED.
(e) Litigation; Judgments. To the best of the Contributor's knowledge,
there is no action, proceeding or investigation pending or threatened
against or involving relating to the Contribution, nor is there any
action or proceeding pending or threatened before any court, tribunal
or governmental body seeking to restrain or prohibit or to obtain
damages or other relief in connection with the consummation of
transactions contemplated by this Agreement, or which might adversely
affect the Contributor's ability to consummate the transactions
contemplated by this Agreement, the Member Control Agreement or any
other documents related thereto.
(f) Insurance. INTENTIONALLY OMITTED.
(g) Material Contracts. INTENTIONALLY OMITTED.
(h) Intellectual Property. INTENTIONALLY OMITTED.
(i) Solvency. Before and after the Contribution, the Contributor is not
bankrupt or insolvent, and has a positive net worth.
(j) Relationship with Customers and Insurance Company. INTENTIONALLY
OMITTED.
(k) Full Disclosure. This Agreement and the exhibits and schedules
attached hereto disclose all facts material to the acceptance of the
Contribution. No statement contained herein in or in any certificate,
schedule, list, exhibit, document, agreement or other instrument
furnished by the Contributor or its representatives contains or will
contain any
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untrue statement of any material fact or omits or will omit to state a
material fact necessary in order to make the statements contained
herein or therein not misleading.
5.) Investment Purpose in Acquiring Membership Units. The Contributor
acknowledges that the Membership Units have not been registered under the
Securities Act of 1933, as amended (the "Act"), or applicable state securities
laws, and that the Membership Units will be issued to the Contributor in
reliance on exemptions from the registration requirements of the Act and
applicable state securities laws and in reliance on the Contributor's
representations and agreements contained herein. The Contributor is acquiring
the Membership Units for its own account for investment purposes only and not
with a view to their resale or distribution. The Contributor has no present
intention to divide its participation with others or to resell or otherwise
dispose of all or any part of the Membership Units. Furthermore, the Contributor
represents and warrants the following relating to its investment in the
Membership Units:
(a) The Contributor is a corporation organized under the laws of the
State of Minnesota with a principal place of business at the address
set forth below.
(b) The Contributor's taxpayer identification number is correctly set
forth below.
(c) The Contributor has full legal right, power and authority to enter
into and perform this Agreement.
(d) The Contributor: (i) has a preexisting personal or business
relationship with the Company or one or more of its managers, governors
or other Members, or (ii) by reason of the Contributor's business or
financial experience, or by reason of the business or financial
experience of the Contributor's financial advisor who is unaffiliated
with and who is not compensated, directly or indirectly, by the Company
or any affiliate or selling agent of the Company, the Contributor is
capable of evaluating the risks and merits of this investment and of
protecting the Contributor's own interests in connection with this
investment.
(e) The Contributor has obtained all information about the Company
which the Contributor considers necessary, relevant and advisable to
the decision to purchase the Membership Units. The Contributor has also
had the opportunity to ask questions of, and to receive answers from,
the Company or an agent or a representative of the Company concerning
the terms and conditions of the investment and the business and affairs
of the Company and to obtain any additional information the Contributor
deems necessary to verify such information.
(f) The Membership Units acquired hereunder were not advertised for
sale to the general public in any publication or by any other media or
via mail or telephone.
6.) No Delivery of Certificates. Upon acceptance of this Agreement by
the Company, the books and records of the Company will be revised to reflect the
Contributor's contribution as an investment in the Membership Units. No
certificate evidencing the Membership Units will be issued or delivered.
3.
7.) Further Assurances. The Contributor agrees to execute and deliver
any other instruments and documents, and to take such additional action, at its
sole expense, as the Company may from time to time reasonably request to effect
the payment of the Contribution as contemplated herein.
8.) Survival of Representations. Each of the Contributor's
representations, warranties, covenants and agreements made in this Agreement or
in any other document or instrument executed and delivered in connection with
the Contributor's Contribution shall survive the Company's acceptance of the
same.
9.) Indemnification. The Contributor agrees to indemnify the Company,
and each current and future manager, governor and Member of the Company, against
and to hold them harmless from any damage, loss, liability, claim or expense,
including, without limitation, reasonable attorneys' fees, resulting from or
arising out of the breach or inaccuracy of any of the representations,
warranties, covenants or statements of the Contributor contained in this
Agreement.
10.) Schedules. All documents and other papers included as a part of
any exhibits and schedules referred to in this Agreement are hereby incorporated
into this Agreement by reference.
11.) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Minnesota, without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Minnesota or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Minnesota.
12.) Counterparts. This Agreement may be executed by the Company and by
the Contributor in separate counterparts, each of which shall be deemed an
original.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the day and year first above written.
COMPANY: CONTRIBUTOR:
REDBALL, LLC AG-CHEM EQUIPMENT CO., INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------- -------------------------------
Its: President Xxxx X. Xxxxxxxxxx
Senior Vice President
Chief Financial Officer
Address of Contributor:
Ag-Chem. Equipment Co., Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
TIN: 41-087 284 2
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