EXHIBIT 10.1
AG2AG, LLC
LIMITED LIABILITY COMPANY AGREEMENT
This Limited Liability Company Agreement (the "Agreement") for Ag2Ag, LLC
is entered into by the entities listed on Schedule A to this Agreement, who,
together with any subsequently admitted Member, are referred to collectively as
"Members."
ARTICLE 1
ORGANIZATION
1.1. Formation. The Members hereby form a Limited Liability Company (the
"Company") pursuant to the Delaware Limited Liability Company Act.
1.2. Name. The Company shall operate under the name Ag2Ag, LLC or such
other name as the Members from time to time decide.
1.3. Offices. The registered office of the Company shall be located at
such place as shall be indicated in the Certificate of Formation as amended from
time to time. The Company's principal office shall be located at 0000 Xxx Xxx
Xxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000, or at such other location as the Members
decide.
1.4. Purposes. The Company has been organized to:
(a) Form and operate an agricultural electronic marketplace in order
to provide the regional and local cooperative systems with the ability to
enhance and strengthen their customer relationships; and
(b) Engage in any other lawful business activity related or incident
to the purposes set forth in clause (a) above.
1.5. Powers. The Company shall have the power and authority to enter into,
make and perform all contracts, agreements and undertakings, and to do any and
all acts and things necessary, appropriate, incidental or convenient to the
accomplishment of its purposes and for the protection and benefit of the
Company.
1.6. Terms; Authorization. The Company shall commence upon the filing of
the Certificate of Formation with the office of the Secretary of State, and
shall continue until terminated as provided herein. Any attorney or employee of
the Land O'Lakes, Inc. law department, as an authorized person within the
meaning of 6 Del. C. Section 201, shall execute, deliver and file the
Certificate of Formation for the Company in the form annexed hereto as Schedule
B. Any action heretofore taken in that regard is ratified and confirmed.
1.7. Fiscal Year. The fiscal and taxable year of the Company shall end on
the last day of August of each year unless otherwise designated by the Members
or otherwise required by the Code.
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ARTICLE 2
MANAGEMENT
2.1. Management of Company Affairs. Except for situations in which the
approval of the Members is required by this Limited Liability Company Agreement,
or by nonwaivable provisions of applicable law, the Company shall be managed by
one or more Managers. The Managers shall be responsible for the administration
and management of the Company and other such duties as set forth in agreements
between the Company and the Managers described in subsection 2.5 herein. The
Managers shall have the right to allocate among themselves or to others the
responsibility for the management of the Company, and may adopt and use for the
benefit of the management of the Company such titles as they shall determine, as
long as such title also includes information that the individual is a Manager. A
Manager's signature shall be sufficient to bind the Company, and no third party
need inquire into the authority of a Manager to bind the Company. Except as
otherwise specifically provided, the Members shall not be responsible for the
management of the Company.
2.2. Authority of Managers. The Managers are authorized:
(a) To operate on behalf of the Company an electronic marketplace
which shall serve the interests of regional and local cooperatives and such
other related activities as the Members shall determine.
(b) To employ, by contract or otherwise, all personnel as shall be
necessary to operate the business of the Company
(c) To select and retain (except as delegated to the Members)
accountants, attorneys and other advisers to provide services to the Company.
(d) To submit an annual budget and business plan to the Members
committee of the Company (described in Article 8 herein) for approval. The
Managers shall be subject to the approved budget and business plan in managing
the Company and shall not have the authority to expend funds in excess of such
budget and business plan. Such business plan shall include an annual budget for
expenses, revenues, working capital reserves, and capital expenditures, any
additional capital contributions needed for the operation of the business.
(e) To execute, acknowledge and deliver any and all instruments to
effectuate the foregoing.
(f) To take any other action deemed desirable by the Members to
carry out the purposes of the Company.
2.3. Related Party Transaction. The Managers may cause the Company to
obtain products or services from entities controlling, controlled by or under
the common control of any Member (including the Managers) and to pay such
entities reasonable fees for such products and services.
2.4. Tax Matters Partner. Land O'Lakes, Inc., shall be the Company's Tax
Matters Partner in accordance with Code Section 6231(a)(7). The Managers may
appoint a new Tax Matters Partner who shall act at the direction of the
Managers.
2.5. Authority of Members. The Members shall retain all powers not
designated to the Managers, including the following:
(a) The Members shall have the authority to employ and terminate
the Managers, and to enter into written agreements as to their
employment.
(b) The Members shall have the authority to approve an annual
budget and business plan prepared by the Managers for the
benefit of the Company, and
(c) The Members or their authorized agent shall execute on behalf
of the Company the following documents:
(i) The employment, personnel lease or other document where
a Manager is a party to the agreement or where the
services of employees of either Member are being
contracted;
(ii) Master Services Agreements with technology vendors;
(iii) Agreements with local cooperative members;
(iv) Agreements with product groups;
(v) Agreements with other service providers;
(vi) Any other agreements necessary for the operation of the
Company.
(d) The Members shall have the sole authority to employ all
auditors for the benefit of the Company.
2.6. Matters Requiring Unanimous Approval of Members. None of the
following actions may be taken by the Company without prior unanimous approval
of the Members: (i) appointment of the Managers of the Company; (ii) making any
single expenditure over $100,000 for any single transaction or making an
expenditure over $100,000 per quarter or any expenditure that would cause the
aggregate expenditures to exceed $100,000 in any one quarter; (iii) admission of
Members to the Company; (iv) formation and operation of e-commerce operations
relating to an industry or industries other than the agricultural industry; (v)
election to dissolve the Company; (vi) approval of the sale of all or
substantially all of its assets or significant assets; (vii) requiring any
additional capital contributions; (viii) authorizing cash distributions of
earnings of the Company to the Members including, but not limited to,
distributions which are not in proportion to their respective Membership
Interests.
ARTICLE 3
RECORDS
3.1. Books and Records. The Company's books and records shall be
maintained by the Managers at the principal office of the Company and shall
include the following:
(a) A current list of the full name and last known mailing address
of each Member and Manager;
(b) A copy of the Certificate of Formation of the Company and all
amendments thereto, together with executed copies of any
powers of attorney pursuant to which any amendment has been
executed;
(c) Copies of the Company's currently effective written Limited
Liability Company Agreement and all amendments thereto, copies
of any similar prior written agreements no longer in effect,
and copies of any writings permitted or required with respect
to a Member's obligation to contribute cash, property, or
services;
(d) Copies of the Company's currently effective written Managers
Agreement and all amendments thereto, and copies of any
similar prior written agreements no longer in effect;
(e) Copies of the Company's federal, state and local income tax
returns and reports for the three most recent years;
(f) Copies of financial statements of the Company, if any, for the
three most recent years;
(g) Minutes of every annual or special meeting of the Members
Committee;
(h) Any written consents obtained from Members for actions taken
by Members without a meeting.
3.2. Copies of Books and Records. At the request of Farmland Industries,
the Company shall provide copies of the books and records.
ARTICLE 4
MEMBERSHIP INTERESTS
4.1. Membership Interests. In exchange for the capital contribution
provided for in Article 5, the Members shall each have the following membership
interest ("Membership Interest") in the Company:
Land O'Lakes, Inc. 50%
Farmland Industries, Inc. 50%
Membership Interest shall be further defined to mean the entire ownership
interest of a Member in the Company at any particular time, including, without
limitation, the right of such Member to any and all benefits to which a Member
may be entitled as provided in this Agreement and under law, together with the
obligations of such Member to comply with all terms and provisions set forth in
this Agreement and under law.
ARTICLE 5
CAPITAL CONTRIBUTIONS AND LOANS
5.1. Capital Contributions. Each Member shall make an initial aggregate
contribution to the capital of the Company ("Capital Contributions"), of cash as
described on attached Schedule A. Each of Land O'Lakes, Inc. and Farmland
Industries, Inc. shall be allocated one (1) Member Unit in respect of each $1.00
of value represented by their respective initial capital contributions.
5.2. Additional Capital Contributions. Additional amounts may be required
from the Members ("Additional Capital Contributions"), only in accordance with
this Agreement or as approved by the Managers.
5.3. Capital Accounts. The Company shall maintain a capital account for
each Member according to the regulations under Section 704 of the Code. A
Member's capital account initially shall be the agreed value of initial capital
contributed by such Member as shown on Schedule A. Each Member's capital account
shall thereafter be credited with the amount of the Member's additional cash
contributions, if any, the agreed value of the Member's additional contributions
of property, if any, and the Member's share of Tax Profits excluding Built-in
Gains and Built-in Losses and shall be debited with the amount of cash
withdrawals and distributions, the agreed value of property distributions and
the Member's share of Tax Losses excluding Built-in Gains and Built-in Losses.
If Member Units are transferred, the portion of the transferor's capital account
attributable to the transferred Member Units shall be added to the transferee's
capital account and subtracted from the transferor's capital account.
5.4. Capital Withdrawal Rights, Interest and Priority. Prior to the
dissolution and termination of the Company, no Member shall be entitled to
withdraw or reduce such Member's Capital Account or to receive any distributions
from the Company, other than distributions as provided in Article 6 hereof.
Except as provided in Article 12, no Member shall be entitled to receive or be
credited with any interest on the balance in such Member's Capital Account at
any time. No Member shall have any priority over any other Member as to the
return of the balance in such Member's Capital Account.
5.5. Loans. Any Member may make a loan to the Company in such amounts, at
such times and on such terms and conditions as may be approved by the Member
Committee, subject to the conflict of interest provisions set forth in this
Agreement. Loans by any Member to the Company shall not be considered as
contributions to the capital of the Company.
5.6. Limited Liability. Except as otherwise provided herein, no Member
shall be liable for the debts, liabilities, contracts, or any other obligations
of the Company. Except as otherwise provided by applicable state law or this
Agreement, a Member shall be liable only to make its Capital Contributions and
shall not be required to lend any funds to the Company. No
Member shall have any personal liability for the repayment of any Capital
Contributions of any other Member.
5.7. Allocation of Income and Losses. The income and losses of the Company
shall be allocated in accordance with the Members' share of the Member Units as
reflected from time to time by the records of the Company. The initial Member
Units issued upon the organization of the Company are based upon the agreed
value of the contribution as reflected by Schedule A.
5.8. Other Allocations.
(a) Built-in Gains and Built-in Losses. Built-in Gains and
Built-in Losses shall be allocated to the contributing Members
according to the principles of Section 704(c) of the Code, as
amended, and the regulations thereunder. Unless otherwise
specified at the time of contribution, the portion of the
Built-in Gains and Built-in Losses to be allocated to each
Member Unit received in exchange for a capital contribution
shall be in the same proportion as the value of that Member
Unit bears to the total value of all Member Units received in
such exchange.
(b) Remaining Tax Profits and Tax Losses. The Tax Profits and Tax
Losses remaining after the allocations, if any, required by
subparagraph (a) above, shall be allocated ratably to the
holders of Member Units.
(c) Authority to Vary Allocations. The Members may decide to vary
these allocations to the extent necessary to comply with
federal income tax laws.
ARTICLE 6
DISTRIBUTIONS
6.1. Distributions.
(a) Except as otherwise provided in Article 12 of this Agreement
with respect to the dissolution of the Company, distributions of net cash from
operations of the Company, or from sales or exchanges of Company property, to
the extent such cash is in excess of the amount that the Managers in their
reasonable discretion determine is necessary to meet the Company's reasonably
foreseeable cash requirements and needs of the business and activities of the
Company and to establish an adequate reserve for the payment of Company
liabilities and contingencies, may be authorized and paid from funds lawfully
available therefor as and when determined by the Managers in their sole and
absolute discretion.
(b) In the event that the Managers authorize any distribution of net
cash to be made in respect of the Member Units pursuant to this Agreement, such
distributions shall be made (i) first, to the Members pro-rata in proportion to
the respective Capital Contributions of each Member, until each Member has
received distributions pursuant to this subsection 6.1(b)(i) in an amount equal
to such Member's aggregate Capital Contributions and (ii) then, to the Members
pro-rata in proportion to the Members' then respective Membership Interests. In
the event that any distributions of assets other than net cash are made in
respect of the Member Units, such assets shall be distributed to the Members in
the same proportions in which the
Members would have been entitled to receive cash distributions or as otherwise
agreed to by the Members.
ARTICLE 7
NEW MEMBERS, TRANSFERS AND CESSATION OF MEMBERSHIP
7.1. Admission of New Members. No person may be admitted as a Member
without the approval of all other Members.
7.2. Transfers
(a) Sale to Another Member. A Member Unit may be transferred or sold
to another Member at any time under such terms or conditions as the Members
shall agree.
(b) Voluntary Sale or Transfer to Third Party. No Member may sell,
transfer, assign, give, mortgage, alienate, pledge, hypothecate or otherwise
encumber or dispose of all or any part of such Member's Member Units or
Membership Interest, voluntarily, involuntarily or by operation of law, without
the unanimous written consent of all Members. Any purported encumbrance or
disposition of any Member Units or Membership Interest in violation of the terms
of this Agreement shall be null and void and of no effect. Notwithstanding the
foregoing, any Member may (a) pledge and grant a security interest in it's
Interest to any of its creditors, and (b) may execute such documents requested
by such creditor, which documents may provide for the transfer of such Member's
Interests in the Company to such creditor, or to a third party designated by
such creditor through (i) foreclosure, (ii) transfer in lieu of foreclosure, or
(iii) any sale by such creditor to a third party following creditor's
foreclosure or a transfer in lieu of foreclosure all in accordance with
subsection (c) below.
(c) Transfer by Legal Process. Upon any involuntary transfer of all
or any portion of the Units of a Member pursuant to a levy of execution,
foreclosure of pledge, garnishment, attachment, divorce decree, bankruptcy or
other legal process (or by operation of law resulting from the death,
disability, liquidation, dissolution or winding up of a Member), such Member
shall cease to be a Member, but any successor in title to the transferred Units
shall have no right to become a Member or vote in any Company matters unless
admitted as a Member by written unanimous consent of the other Members. If such
successor does not become a Member, such successor shall be merely an assignee
within the meaning of Section 18-702(b) of the Act.
(d) Assignment of Right to Distributions. Each Member shall have the
right to sell, transfer or assign, for cash, or cash and notes, by a written
instrument its right to receive distributions of cash or other property from the
Company; provided that any such assignment is not secured by the Units and
further provided that such an assignee shall not be substituted as a substitute
Member in place of any Member.
7.3. Securities Law Transfer Restrictions. All Members acknowledge that
the Member Units have not been registered under the Securities Act of 1933, as
amended (the 1933 Act), in reliance on applicable exemptions. Therefore, the
Members agree that the Member Units
shall be nontransferable, except in compliance with the terms of the Agreement,
the 1933 Act and applicable state securities laws, and any transfer not in
compliance shall be void.
7.4. Rights of Assignees. A transferee of Member Units or Membership
Interests who is not admitted as a Member shall have only the rights of an
assignee. An assignee of Member Units or Membership Interests who is not a
Member shall not be entitled to interfere in the management of the Company's
affairs, vote, or receive any information of Company transactions.. The assignee
shall merely be entitled to receive, in accordance with the terms of the
assignment, the distributions to which the assignor otherwise would be entitled.
7.5. Resignation and Withdrawal of Member. No Member may resign or
withdraw from the Company without the unanimous written consent of the other
Members.
ARTICLE 8
MEMBERS COMMITTEE
8.1. Formation. The Members shall establish a Members Committee to
represent the Members with respect to such matters as shall be referred to the
Committee by either of the Members.
8.2. Voting Rights. Each Member, except as changed by amendment to the
Agreement, shall have fifty percent (50%) of all voting rights as to all matters
relating to the activities of the Company. Such rights may be exercised directly
by the Members, or by the Committee as provided hereafter on behalf of the
Members.
8.3. Representatives of Members. As to the affairs of the Members
Committee, each Member shall appoint two individuals to represent it on the
Members Committee. Each person selected shall serve at the discretion of the
Member, and shall have authority with respect to any and all matters which are
referred to the Members Committee by the Members. Such matters may be submitted
in any format or manner whatsoever and cover any subject matter deemed relevant
or necessary by the Member submitting the matter to the Members Committee. The
vote of a Member shall be determined by a majority vote of the individuals
representing the Member on the Members Committee. If only one Member Committee
representative can attend a meeting, he/she may cast his/her vote for both
Member Committee representatives.
8.4. Quorum. One Member Committee representative from each Member shall be
required to constitute a quorum at all meetings of the Member Committee for the
transaction of any business.
8.5. Administration of the Members Committee. The individual members of
the Members Committee shall appoint a Chairman and Secretary who shall be
responsible for the affairs of the Members Committee.
8.6. Meetings of the Members Committee. A meeting of the Members Committee
may be called at any time by the Chairman, Secretary or any Member.
8.7. Informal Action by Members. Any action required to be taken by the
Members may be taken without a meeting of the Members Committee, if a consent in
writing setting forth the action so taken shall be executed by the Members and
filed with the Company.
ARTICLE 9
EXCULPATION AND INDEMNIFICATION
9.1. Exculpation. No Manager or Member shall be liable to any of the other
Members for "Good Faith Errors" ("Good Faith Errors" shall be defined as
mistakes of judgment or losses due to such mistakes or to the negligence or bad
faith of any employee, broker, adviser or other agent or representative of the
Company, provided that such agent or representative was selected with reasonable
care). The Managers and Members may consult with legal counsel selected by the
Managers and Members and shall have no liability for the consequences of any act
or omission resulting from good faith reliance on the advice of such counsel.
The exculpation provided in this paragraph 9.1 also shall apply to the agents,
employees and other legal representatives of such Manager or Member.
9.2. Indemnification. The Company shall indemnify and hold harmless the
Managers and each Member from and against any loss or expense incurred by reason
of the fact that the Managers or Members are or were a Manager or Member of the
Company, including without limitation any judgment, settlement, reasonable
attorneys fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action or proceeding, providing such loss or
expense resulted from Good Faith Errors or from action or inaction taken in good
faith for a purpose which said Manager or Member reasonably believed to be in,
or not opposed to, the best interest of the Company. The indemnification
provided in this paragraph 9.2 also shall apply to the agents, employees and
other legal representatives of each Manager or Member.
ARTICLE 10
TRANSACTIONS UPON FORMATION OF THE COMPANY
10.1. Transfer/Assignment/License of Intellectual Property.
(a) Simultaneous with Land O'Lakes' payment of its Capital
Contribution to the Company or as soon as practicable thereafter, Land O'Lakes
and the Company shall enter into a license, sublicense or assignment agreement,
in a form approved by the Managers and as attached hereto and made a part hereof
as Exhibit 1, providing for the assignment, license or sublicense to the Company
of the following:
(i) Applications which shall support the operations of
the Company and which Land O'Lakes either owns, has an ownership
interest in or a license to operate;
(ii) Trademarks, tradenames and/or services marks
("Marks") which Land O'Lakes either owns, has an ownership interest
in or a license to use, for the limited purpose of posting said
Marks on Company's Xx0Xx.xxx site.
(b) Simultaneous with Farmland Industries' payment of its Capital
Contribution to the Company or as soon as practicable thereafter, Farmland
Industries and the Company shall enter into a license, sublicense or assignment
agreement, in a form approved by the Managers and as attached hereto and made a
part hereof as Exhibit 2, providing for the assignment, license or sublicense to
the Company of the following:
(i) Applications which shall support the operation of
the Company and which Farmland Industries either owns, has an
ownership interest in or a license to operate;
(ii) Trademarks, tradenames and/or services marks
("Marks") which Farmland Industries either owns, has an ownership
interest in or a license to use, for the limited purpose of posting
said Marks on Company's Xx0Xx.xxx site.
(c) Simultaneous with Farmland Industries' payment of its Capital
Contribution to the Company, and for no consideration, Farmland Industries shall
assign to the Company, all of Farmland Industries' right, title and interest in
and to the domain name "Xx0Xx.xxx", including any related tradenames, trademarks
or other related intellectual property, and shall execute such instruments as
reasonably necessary to evidence such assignment.
ARTICLE 11
COVENANTS
11.1. Services to be Provided. To the extent reasonably requested by the
Company, Land O'Lakes and Farmland Industries each hereby agrees to provide to
the Company such administrative, business management, operations, accounting and
legal services and to make available such personnel, facilities, equipment and
proprietary technology related to the business as may be reasonably necessary to
the provisions of such services. In consideration of the delivery of such
services, the Company shall pay to each Member from time to time such amount to
be fixed on a basis approved by such Member and the Managers as will allow such
Member to recover the cost of providing such services, including third-party
costs and expenses reasonably incurred in connection with the services. Within
fifteen (15) days following the end of each calendar month, Land O'Lakes or
Farmland may furnish the Company with an invoice showing the amount due for
services. Terms for all payments due Land O'Lakes or Farmland will be net thirty
(30) days from the date of invoice.
11.2. Confidentiality. Each Member agrees that with respect to any
confidential information of the Company which the Member receives from the
Company, such Member shall hold such information confidential, and cause its
employees and agents to treat such confidential information consistent with the
Member's internal corporate policies regarding confidential information. The
Company agrees that with respect to any confidential information of a Member
which the Company receives from such Member, the Company will hold such
information confidential and cause its employees and agents to treat such
confidential information consistent with the Company's internal corporate
policies regarding confidential information. The provisions of this Section 11.2
shall not apply to (i) information acquired from a Person (other than the
Company), free of any obligation to keep it confidential; (ii) information
which has become generally publicly known through authorized disclosure; (iii)
information which has become generally known or readily available to members of
the agricultural industry; (iv) information developed by a Person (other than
the Company) without the unauthorized use of any confidential information of the
Company; and (v) information rightfully obtained from a Person (other than the
Company) who has the right to transfer and disclose it.
ARTICLE 12
DISSOLUTION AND LIQUIDATION
12.1. Events Causing Dissolution. The Company shall be dissolved upon the
unanimous written agreement of the Members to dissolve.
12.2. Dissolution Procedures.
(a) On dissolution of the Company, the Managers, or, if none, the
remaining Members, or, if none, a liquidator selected by the
assignees owning more than 50% of the outstanding Member
Units, shall immediately commence to wind up the Company's
affairs. The holders of the Member Units shall continue to
share profits and losses during the period of liquidation in
accordance with Article 5 hereof.
(b) All distributions shall be made to the Members based upon the
allocation of the profit and loss then in effect as provided
by paragraph 5.7.
(c) Following the distribution of the assets to the Members and
payment of or provision for all debts and liabilities of the
Company and all expenses of liquidation, and subject to the
right of the Members (or such liquidator) to set up such cash
reserves as they decide shall be reasonably necessary for any
contingent or unforeseen liabilities or obligations of the
Company, the proceeds of the liquidation and any other funds
(or other remaining assets) of the Company shall be
distributed, in cash or in kind or partly in each, to the
Members as provided in Article 5.
(d) Each Member shall look solely to the assets of the Company for
all distributions with respect to the Company and its capital
contribution thereto and share of profits or losses thereof,
and shall have no recourse therefor (upon dissolution or
otherwise) against any Manager or any other Member.
(e) Upon the completion of the liquidation of the Company and the
distribution of all Company funds and other assets, the
Company shall terminate and the Members shall have the
authority to obtain Articles of Dissolution of the Company as
well as any and all other documents required to effectuate the
dissolution and termination of the Company.
ARTICLE 13
RIGHT OF FIRST REFUSAL
13.1. Right of First Refusal
(a) A Member which desires to sell, assign, exchange or otherwise
transfer for consideration, or gift (collectively, "sell" or
"sale") to a third party (voluntarily or involuntarily,
including without limitation by court order or by or through a
pledgee, lienholder, receiver or trustee in bankruptcy) (the
"Selling Member") all (but not less than all) of its
Membership Interest or Economic Interest (as defined below)
shall obtain from the potential purchaser a bona fide written
offer to purchase such Membership Interest or Economic
Interest, stating all material terms and conditions upon which
the purchase is to be made and the consideration offered
therefor (an "Offer"). The Selling Member shall give written
notice (the "First Notice") to each other Member, by certified
mail or personal delivery, of its intention to so transfer
such interests, furnishing to each other Member a copy of the
Offer.
(b) The other Member shall have the right (but not the obligation)
to exercise a right of first refusal to purchase, all (but not
less than all) of the Membership Interest or Economic Interest
proposed to be sold by the Selling Member upon the same terms
and conditions as stated in the Offer by giving written
notification to the Selling Member, by certified mail or
personal delivery within 30 days after receiving the First
Notice from the Selling Member or to sell its Membership
Interest or Economic Interest to the Third Party.
(c) If the other Member fails to exercise its right of first
refusal as to all of the Membership Interest or Economic
Interest of the Selling Member proposed to be sold in the
Offer within thirty (30) days, the Selling Member shall be
entitled to complete the transactions specified in the Offer
on the terms and conditions set forth in the Offer for a
period of thirty (30) days thereafter free of the right of
first refusal. If the Selling Member fails to complete the
transaction within such thirty (30) day period, the Membership
Interest or Economic Interest of the Selling Member shall
again become subject to all provisions of this Article 13.
(d) If the other Member gives written notice to the Selling Member
of its desire to exercise this right of first refusal and to
purchase all of the Selling Member's Membership Interest or
Economic Interest upon the same terms and conditions as are
stated in the Offer, the purchasing Member shall have the
right to designate the time, date and place of closing,
provided that the date of closing shall be within one hundred
twenty (120) days after receipt of the First Notice.
(e) In the event of the purchase of either the Selling Member's
Membership Interest or Economic Interest by a third party
purchaser, and as a condition
to recognizing the effectiveness and binding nature of any
such sale and substitution of a new Member as against the
Company or otherwise, the Company may require the Selling
Member and the proposed purchaser, donee or
successor-in-interest, as the case may be, to execute,
acknowledge and deliver to the Company such instruments of
transfer, assignment and assumption and such other
certificates, representations and documents, and to perform
all such other acts which the other Member may deem necessary
or desirable to:
(i) constitute such purchaser, donee or
successor-in-interest as a Member;
(ii) confirm that such purchaser, donee or
successor-in-interest, has accepted, assumed and agreed
to be subject and bound by all of the terms, obligations
and conditions of this Agreement, as the same may have
been further amended;
(iii) preserve the Company after the completion of such sale,
transfer, assignment, or substitution under the laws of
each jurisdiction in which the Company is qualified,
organized or does business;
(iv) maintain the status of the Company as a partnership for
federal tax purposes; and
(v) assure compliance with any applicable state and federal
laws including securities laws and regulations.
(f) The Selling Member hereby indemnifies the Company and the
other Member against any and all loss, damage, or expense
(including, without limitation, tax liabilities or loss of tax
benefits) arising directly or indirectly as a result of any
transfer or purported transfer in violation of this Article
13.
(g) The provision of this Article 13 shall not apply to a sale to
any Affiliate of a Member, which Affiliate agrees to be bound
by the terms hereof. Affiliate of a Member shall be defined to
mean (i) a partner, shareholder or member of a Member holding
a controlling interest in the Member or (ii) a partnership,
corporation or limited liability company of which a Member, or
an affiliate of a Member, is a controlling partner,
shareholder or member.
(h) "Economic Interest" shall be defined as a Member's or other
Person's share of one or more of the Company's profits, losses
and distributions of the Company's assets pursuant to this
Agreement and the Act, but shall not include any right to
participate in the management or affairs of the Company,
including the right to vote on, consent to or otherwise
participate in any decision of the Members or Managers, or any
power of appointment.
ARTICLE 14
DEFINITIONS
14.1. Definitions. The terms set forth below shall have the following
meanings in this Agreement:
Person means any natural person, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or other entity.
Built-in Gains means allocations pursuant to Section 704 (c) of the Code
taken into account in determining Tax Profits or Tax Losses, to the extent such
gains are attributable to the excess of the agreed value over the tax basis,
both as shown on Schedule B, of property contributed to the Company.
Built-in Losses means allocations pursuant to Section 704 (c) of the Code
taken into account in determining Tax Profits or Tax Losses, to the extent such
losses are attributable to the excess of tax basis over agreed value, both as
shown on Schedule B, of contributed property.
Code means the Internal Revenue Code of 1986, as from time to time
amended. A reference to a Section of the Code shall be a reference to the
corresponding provision of any successor statute.
Tax Losses and Tax Profits mean the net loss or income of the Company as
reported by the Members for federal income tax purposes as to such taxable year,
calculated by (i) including all amounts allocated to all Members under Sections
702(a)(1) through 702 (a) (8) of the Code, (ii) increased by tax-exempt income
and (iii) decreased by expenditures described in Section 705(a)(2)(B) of the
Code.
ARTICLE 15
MISCELLANEOUS
15.1. Waiver of Partition. Each Member hereby waives any right to seek a
court decree of dissolution or partition or to seek the appointment by a court
of a liquidator for the Company.
15.2. Right to Distribution In Kind. Except as provided by this Agreement,
no Member shall have any right to demand or receive any particular property upon
dissolution and termination of the Company or to demand the return of the
Member's capital contribution to the Company. The property to be received upon
liquidation of the Company shall be decided by the Members, except that no
Member shall be required to accept a distribution in kind in excess of the
Member's fractional interest in the Company (Member Units owned by such Member
divided by total Member Units outstanding) without the Member's consent.
15.3. Integrated Agreement. This Agreement constitutes the entire
agreement of the parties. It supersedes any prior agreements, negotiations or
understandings among them, and it may be amended only as provided in Article16.
15.4. Binding Agreement. This Agreement shall bind the executors,
administrators, estates, heirs and legal successors of the parties hereto.
15.5. Governing Law. Except as otherwise specifically provided, Delaware
law shall govern this Agreement and all questions arising hereunder.
15.6. Jurisdiction. Each Member hereby irrevocably submits itself to the
jurisdiction of the States of Missouri or Minnesota, and to the jurisdiction of
the Federal District Courts for the District of Xxxxxxx County, Missouri or
Xxxxxx County, Minnesota, for the purpose of any suit, action, or other
proceeding arising out of or relating to this Agreement. Each Member hereby
agrees that it will not bring or file any suit, action, or other proceeding
arising out of or relating to this Agreement in a venue other than the two
listed above.
15.7. Additional Documents and Acts. Each Member agrees to execute and
deliver such additional documents and instruments and to perform such additional
acts as may be necessary or appropriate to effectuate, carry out and perform all
of the terms, provisions, and conditions of this Agreement and the transactions
contemplated hereby.
15.8. No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns, and no other person will have any rights,
interest, or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise.
15.9. Notices. All notices, offers and acceptances and other
communications hereunder shall be in writing and shall be delivered in person,
by telecopy with confirmation, by overnight delivery service with receipt, or
shall be deposited in the United States Mail, postage prepaid, by certified or
registered mail, return receipt requested, to the address shown on Schedule A,
or, if to the Company, to its registered office. A communication shall be deemed
received: (i) if by personal delivery, on the date delivered, (ii) if by
telecopy, on the date confirmed, (iii) if by overnight delivery service, on the
date delivered and (iv) if by mail, five business days after mailing.
15.10. Counterparts. This Agreement may be executed in multiple
counterparts.
[SIGNATURES ON NEXT PAGE]
ARTICLE 16
AMENDMENTS
16.1 Amendments. This Agreement shall not be amended to change any
Member's share of distributions without the consent of such Member. Subject to
the preceding sentence, this Agreement may be amended at anytime, with the
consent of Members owning more than 50% of the voting rights of all Members.
This Agreement is executed as of the 28th day of February, 2001.
MEMBERS:
LAND O'LAKES, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------
Print Name: Xxxxxx Xxxxxxx
---------------
Its: Senior Vice President and CFO
------------------------------
FARMLAND INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Print Name: Xxxxxx X. Xxxxx
----------------
Its: President and CEO
-----------------
MANAGERS:
By: Xxxx X. Xxxxxxxx
-----------------
(PLEASE PRINT)
By: Xxxxxxx X. XxXxxxx
-------------------
(PLEASE PRINT)
EXHIBIT A
Xxxx of Sale
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Farmland Industries, Inc., a Kansas
corporation ("Seller"), for good and valuable consideration to it in hand paid
(receipt of which is hereby acknowledged), does hereby by these presents,
irrevocably sell, assign, transfer, and deliver unto Land O'Lakes a Minnesota
cooperative ("Buyer"), its successors and assigns, all of Seller's right, title
and interest in and to all of the assets listed on Exhibit A attached hereto
(the "Transferred Assets") and by this reference made a part hereof, wherever
such assets may be located and whether or not reflected on the balance sheet of
Seller.
TO HAVE AND TO HOLD, unto Buyer, its successors and assigns, FOREVER.
THE TRANSFERRED ASSETS ARE SOLD "AS IS" AND "WHERE IS" WITH ALL FAULTS. SELLER
HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSES.
This Xxxx of Sale is delivered in accordance with the Order Approving
Procedures for Sales of Miscellaneous Assets of Debtors Pursuant to section 363
of the Bankruptcy Code, entered by the US Bankruptcy Court for the Western
District of Missouri on September 27, 2002 (the "Order", capitalized terms used
herein without definition shall have the meanings ascribed thereto in the
Order). The delivery of this Xxxx of Sale to Buyer constitutes a certification
by Seller that Seller has delivered a Notice of Sale in compliance with the
Order, that the approval of the Required Groups has been obtained and title to
the Transferred Assets is being transferred hereby free and clear of liens
pursuant to the Order.
This instrument shall be binding upon, inure to the benefit of and be
enforceable by Seller and Buyer and their respective successors and assigns.
IN WITNESS WHEREOF, the duly authorized officer of Seller has hereunder set
his hand on the 26th day of December, 2002.
/s/ Xxx X. Xxxxxxxxx
-------------------------
By: /s/ Xxx X. Xxxxxxxxx
-------------------------
Title: Vice President
-------------------------
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