Exhibit 10.1
SEABOARD TRIUMPH FOODS, LLC
SUBSCRIPTION AGREEMENT
MAY 13, 2015
For good and valuable consideration, the undersigned
subscriber (the "Subscriber") hereby irrevocably subscribes for
the number of Units in Seaboard Triumph Foods, LLC, a Delaware
limited liability company (the "Company"), set forth on Exhibit A
hereto under the heading "Seaboard Units" (the "Units") at a
price per Unit equal to $10,000 (aggregate of $207,400,000),
subject to the terms and provisions of this Subscription
Agreement (this "Subscription Agreement") and the Operating
Agreement of the Company (as it may be amended, modified or
supplemented from time to time, the "Operating Agreement"),
dated as of the date hereof, and agrees, as consideration for
the Units, to pay the price for the Units set forth on
Exhibit A hereto. The Subscriber will pay the purchase price
for the Units, and the Company will issue such Units, at the
times set forth on Exhibit A hereto. The Units shall have the
rights, powers, restrictions and limitations of Units set forth
in the Operating Agreement.
Notwithstanding anything herein to the contrary, it is
understood, in accordance with Section 3.02(a) of the Operating
Agreement, (i) that the amounts and timing of the payments
otherwise set out on Exhibit A hereto shall be adjusted to
reflect the amount of funds borrowed by the Company pursuant to
any "Debt Financing" (as defined in the Operating Agreement),
(ii) that the "Members" (as defined in the Operating Agreement)
by mutual written consent, can also adjust the amounts and timing
for payments otherwise set out on Exhibit A hereto based on the
various factors (including, for example, the receipt, timing and
amount of the Debt Financing and the time and cost of the
projected components of "Capital Contributions" (as defined in
the Operating Agreement)) forming the basis for the payments set
forth in Exhibit A hereto, and (iii) that, unless and until the
amounts or timing for the payments otherwise set out on Exhibit A
are in fact adjusted in accordance with clauses (i) or (ii) of
this sentence, the payments listed on Exhibit A shall be made in
accordance with Exhibit A.
THE SUBSCRIBER UNDERSTANDS THAT THE UNITS ARE BEING ISSUED
WITHOUT REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "FEDERAL ACT"), OR UNDER THE SECURITIES LAWS OF ANY
U.S. STATE (THE "STATE ACTS"), IN RELIANCE UPON EXEMPTIONS
PROVIDED BY THE FEDERAL ACT AND THE STATE ACTS AND THE
REGULATIONS PROMULGATED THEREUNDER.
The Subscriber further understands that such reliance is
based in part upon its representations set forth below. The
Subscriber hereby represents and warrants as follows:
1. The Subscriber understands that the Units have not been
registered under the Federal Act or the State Acts, and,
therefore, cannot be resold unless they are registered thereunder
or unless an exemption from registration is available in the
opinion of the Company and, if required by the Company, in the
opinion of counsel to the Company. The Subscriber further
understands that it is not contemplated that any registration of
the Units will be made under the Federal Act or any State Act, or
that the Company will take steps that make the provisions of Rule
144 under the Federal Act available to permit resale of the
Units. The
Subscriber will not attempt to pledge, transfer, convey or
otherwise dispose of the Units other than in compliance with the
terms and conditions of the Operating Agreement.
2. The Subscriber is an "accredited investor" as such term
is defined in Rule 501(a) of Securities and Exchange Commission
Regulation D promulgated under the Federal Act.
3. The Subscriber is the sole party in interest as to the
Units and is acquiring the Units for its own account, not with a
view toward the resale or distribution thereof and with the
intent of holding the Units indefinitely. The Subscriber has not
offered or sold the Units within the meaning of the Federal Act
or any State Act. The Subscriber does not contemplate the sale
of the Units either currently or after the passage of a fixed or
determinable period of time or upon the occurrence or
nonoccurrence of any predetermined event or circumstance. There
is no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing
for, or that is likely to compel a disposition of, the Units.
The Subscriber is not aware of any circumstance presently in
existence that is likely in the future to prompt the distribution
of the Units.
4. The Subscriber understands that it must continue to
bear the economic risk associated with the Units for an
indefinite period of time, because the Units have not been
registered under the Federal Act or any State Act. The Subscriber
is able to bear the economic risk associated with the Units for
an indefinite period of time.
5. The Subscriber understands and agrees to all notices
and restrictions on transfer set forth in the certificate
representing the Units, the Operating Agreement and the Master
Transfer Agreement (as defined in the Operating Agreement).
This Subscription Agreement (including the acceptance page
hereto), constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof. This
Subscription Agreement may be amended only by a writing executed
by both of the parties hereto.
This Subscription Agreement shall be governed by and
construed and enforced in accordance with the internal laws of
the State of Delaware without reference to Delaware choice of law
rules.
This Subscription Agreement may be executed in multiple
counterparts and by the parties hereto on separate counterparts
which, taken together, shall constitute one binding agreement.
This Subscription Agreement shall also be deemed duly executed,
delivered and in full force and effect if (a) the Subscriber has
properly executed a signature page to this Subscription
Agreement, and (b) the Company has accepted the Subscriber's
subscription by properly executing an acceptance of the
Subscriber's subscription.
IN WITNESS WHEREOF, the undersigned Subscriber has executed
and acknowledged this Subscription Agreement as of the date set
forth below.
SUBSCRIBER:
SEABOARD TF HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
Date of Submission: May 13, 2015
The foregoing subscription of Seaboard TF Holdings, LLC is hereby
accepted.
SEABOARD TRIUMPH FOODS, LLC
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Exhibit A
Schedule of Unit Issuances
[Omitted]
Seaboard Corporation undertakes to provide to the Securities and Exchange
Commission Exhibit A, as requested, subject to Seaboard's right to request
confidential treatment under the Freedom of Information Act.
