CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT ("Agreement") is made and entered into
effective the 22nd day of November, 1999, by and among REDBALL, LLC, a Minnesota
limited liability company (the "Company"), C.A.P., INC., a Minnesota corporation
(the "Contributor") and XXXXXX XXXXXXXX and XXXXXX XXXXXXXX, both individuals
residing in the State of Minnesota (collectively, Xxxxxx Xxxxxxxx and Xxxxxx
Xxxxxxxx are referred to herein as the "Claussens").
RECITALS
WHEREAS, the Contributor desires to acquire a total of one hundred
thousand (100,000) membership units of the Company in exchange for the
contribution of certain assets to the Company by the Contributor (the
"Membership Units");
WHEREAS, as the sole shareholders of the Contributor, the Claussens
will receive a material benefit when the Contributor acquires the Membership
Units;
WHEREAS, to induce Ag-Chem Equipment Co., Inc. to become a member of
the Company with the Contributor, the Claussens desire to make certain
representations and warranties regarding such assets; and
WHEREAS, the Company is willing to issue such 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") the assets listed on Schedule I (the "Assets") which
constitute substantially all of the assets of the business operating under the
name of C.A.P., Inc. (the "Business") 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 of
the Assets as provided in Section 1, the Company agrees to assume the
obligations of the Contributor and Business as listed on Schedule 2. It is
expressly understood and agreed that the Company will not be liable for any
obligations, liabilities, contracts, debts, claims, costs, expenses, agreements
or understandings of any kind or nature whatsoever related to the Assets or the
Business except
as provided on Schedule 2. In addition, (i) the Contributor shall pay all
income, sales, use, business, occupation, withholding, employment, security or
similar tax, or any other taxes of any kind whatsoever with respect to the
Assets and the operation of the Business relating to any period before the close
of business on the day prior to date of this Agreement; and (ii) the Contributor
shall pay all transfer taxes and similar charges, if any, arising out of the
transfer of the Assets. The Contributor shall also be, and remain liable for,
any and all third-party charges or levies attributable to the Contributor's
period of ownership of the Assets and operation of the Business through the day
prior to the date of this Agreement.
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 and the
Claussens. The Contributor and the Claussens, jointly and severally, represent
and warrant to the Company as follows:
(a) No Conflict; Required Consents. To the best of the Contributor's
and the Claussens' knowledge, the execution and delivery by the
Contributor or the Claussens of this Agreement, the Member Control
Agreement or any other document related thereto and the consummation by
the Contributor and the Claussens 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, the Claussens or the Business is a party, or by which the
Contributor, the Claussens or the Business or the property of the
Contributor or the Business 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
result in the creation of any lien upon the Assets; 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, the Claussens
or the Business relating to the Contribution of the Assets.
(b) Compliance with Laws. To the best of the Contributor's and the
Claussens' knowledge, the Business is not in violation of, under
investigation with respect to, threatened to be charged with or has
been given notice of any non-compliance with, enforcement action under
or violation of any applicable law, statute, order, rule, regulation,
agency agreement, judgment, decree, arbitration award, penalty or fine
entered
2.
by any federal, state, local or foreign court or governmental authority
relating to the operation of the Business or to the Assets, including,
without limitation, any environmental laws, laws concerning
occupational health and safety, laws pertaining to disabled persons, or
applicable zoning laws or regulations. There are no facts which, if
known by a potential claimant or governmental authority, would give
rise to a claim or proceeding to which the Business or the Assets would
be subject. Schedule 3 sets forth a list of all of the permits and
licenses necessary to operate the Business, and true, correct and
complete copies of all of the licenses and permits have previously been
delivered to the Company.
(c) Assets. To the best of the Contributor's and the Claussens'
knowledge, the Assets are in good operating condition and repair,
normal wear and tear excepted. The Contributor and the Claussens have
caused all repairs and maintenance on the Assets to be performed in
conformance with all recommendations of the manufacturers of the
Assets. As of the date of this Agreement, the Assets are of a quality
and quantity consistent with the ordinary course of the Business, and
none of the inventory or equipment will be obsolete or unusable in the
ordinary course of business. The Assets are sufficient in all respects
for the Company to operate the Business upon their Contribution in a
manner consistent with the normal and customary practice in industry.
(d) Title to Assets. Except as provided on Schedule 2, the Contributor
has good, valid and marketable title to all of the Assets, free and
clear of any liens, pledges, charges, encumbrances, claims, or similar
rights of third parties.
(e) Litigation; Judgments. To the best of the Contributor's and the
Claussens' knowledge, there is no action, proceeding or investigation
pending or threatened against or involving relating to any of the
Assets or the operation of the Business, 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
Business or the Assets, or the Contributor's ability to consummate the
transactions contemplated by this Agreement, the Member Control
Agreement or any other documents related thereto.
(f) Insurance. The Contributor has maintained (and currently maintain)
property, fire, casualty, liability, xxxxxxx'x compensation and other
forms of insurance relating to the Assets and the operation of the
Business against risks of the kind customarily insured against and in
amounts not less than the replacement cost of the Assets.
(g) Material Contracts. Except as set forth in Schedule 4, neither the
Contributor nor the Business are a party to, nor are the Assets bound
by, any distributors or manufacturer representative or agency
agreement, any output or requirements agreement, or any indenture,
mortgage, deed of trust, lease or other agreement.
(h) Intellectual Property. Except as set forth in Schedule 5, neither
the Contributor nor the Business use any trademark, service xxxx, trade
name, copyright or brand name
3.
in the operation of the Business, nor do they own any trademarks,
trademark registrations or applications, trade names, service marks,
copyrights, copyright registrations or applications or brand names
("Intellectual Property"). No consent or filing is required in
connection with the assignment of the Intellectual Property to the
Company. The Contributor owns the Intellectual Property free and clear
of any claims or rights of third parties. No person (other than the
Contributor) owns any trademark, trade name, trademark registration, or
application, service xxxx, trade name, copyright, copyright
registration or application, or brand name, the use of which is
necessary or contemplated in connection with the performance of any
contract to which the Contributor or the Business is a party.
(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. No (a) customer
of the Business, (b) insurance company or agency, (c) referral source,
or (d) third party vendor has notified the Contributor or the Claussens
that it will terminate (or has threatened to terminate) its
relationship with the Business or the Contributor or no longer do
business or refer business to the Business or the Contributor.
(k) Full Disclosure. This Agreement and the exhibits and schedules
attached hereto disclose all facts material to the Assets, the
operation of the Business and 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 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 duly 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.
4.
(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.
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.
5.
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 C.A.P., INC.
By /s/ Xxxxxx Xxxxxxxx By /s/ Xxxxxx Xxxxxxxx
--------------------------------- ---------------------------------
Its: President Its: President
Address of Contributor:
X.X. Xxx 000
---------------------------------
East Hwy 12
---------------------------------
Xxxxxx, XX 00000
---------------------------------
TIN: 000000000
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CLAUSSENS:
XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx
XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx
6.
SCHEDULE 1
ASSETS
See Attached.
REDBALL, LLC
SCHEDULE 1
ASSETS
CONTRIBUTED BY CAP, INC.
SEPTEMBER 30, 1999
ASSETS
CURRENT ASSETS
Cash $ 227,096
Accounts receivable, net 1,219,949
Inventory 2,696,456
Prepaid expenses 42,197
-----------
TOTAL CURRENT ASSETS 4,185,698
PROPERTY, PLANT & EQUIPMENT
Building 74,409
Leasehold Improvements 85,227
Equipment 1,276,818
Vehicles 137,095
-----------
1,573,549
Accumulated depreciation (752,468)
-----------
821,081
OTHER ASSETS, NET OF AMORTIZATION
Investments 3,182
Loan origination fee 0
Patent 0
-----------
3,182
TOTAL ASSETS $ 5,009,961
===========
SCHEDULE 2
LIABILITIES
REDBALL, LLC
SCHEDULE 2
LIABILITIES
CONTRIBUTED BY CAP, INC.
SEPTEMBER 30, 1999
LIABILITIES
CURRENT LIABILITIES
Accounts payable $ 502,243
Customer deposits 392,692
Accrued wages, commiss., bonus 65,523
Other accrued liabilities 1,359
Accrued insur, flex, vac/sick 60,038
Accrued interest 22,675
Operating line of credit - Community First Bank 2,913,279
-----------
TOTAL CURRENT LIABILITIES 3,957,809
LONG TERM DEBT
Xxxxxx Bank - Pickups 38,604
Community First - Punch Saw 15,548
-----------
52,152
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TOTAL LIABILITIES $ 4,009,961
===========
SCHEDULE 3
COMPLIANCE WITH LAWS
SCHEDULE 4
MATERIAL CONTRACTS
SCHEDULE 5
INTELLECTUAL PROPERTY
