Exhibit 10.4
JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT (this "AGREEMENT"), dated July 18,
2000, is entered into by and between FARMLAND INDUSTRIES, INC., a cooperative
corporation organized under the laws of Kansas ("FARMLAND")and LAND O'LAKES,
INC., a cooperative corporation organized under the laws of Minnesota ("LOL")
(Farmland and LOL each individually a "PARTY" and together the "PARTIES").
WITNESSETH:
WHEREAS, each of the Parties is engaged in businesses of
manufacturing and marketing of feed at the wholesale level in North America; and
WHEREAS, in order to better realize the potential of the businesses,
the Parties desire to form a joint venture by establishing and operating a
limited liability company and by entering into agreements ancillary thereto;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein, the Parties agree as follows:
ARTICLE I
ESTABLISHMENT OF LIMITED LIABILITY COMPANY
1. Limited Liability Company. The Parties shall cause to be formed a Delaware
limited liability company with a name to be determined by the agreement of the
Parties (the "COMPANY"). The members of the Company to be formed are Farmland
and LOL (sometimes referred to herein collectively as the "MEMBERS"). LOL shall
own a 69.2% financial interest and a 69.2% governance interest in the Company.
Farmland shall own a 30.8% financial interest and a 30.8% governance interest in
the Company. Farmland and LOL each shall at all times exercise all management
rights with respect to the Company in such a manner as to ensure compliance with
the provisions of this Agreement. The Members shall execute and deliver to each
other a Limited Liability Company Agreement consistent with the provisions
hereof and incorporating such other provisions as may be agreed to by the
parties hereto. Upon completion of the Limited Liability Company Agreement it
shall be separately initialed by the parties hereto and attached hereto as
EXHIBIT B ("LLC AGREEMENT").
1.1 Purpose and Scope of Joint Venture.
(a) Business Objectives: The Company's objectives and scope of business
include: (i) manufacturing and selling feed and feed ingredient products
including specialty feed and pet foods to Members, cooperative members and
patrons of Members, and others for retail resale or use in North American
markets, and (ii) providing other goods and services to Members, members
and patrons of Members, and others.
(b) Term. It is anticipated that the term of the Company would be
perpetual subject to the earlier termination in accordance with the
provisions of Delaware law.
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(c) Limited Purchase Option. LOL will have a limited one time option
between 36 months and 60 months following the closing to purchase the
interests of Farmland in the Company (the "Option"). In the event LOL
determines that it may desire to exercise the Option, it would so notify
Farmland. In the event that LOL and Farmland cannot agree on the price
within 30 days of LOL's original notice, then unless otherwise agreed by
the parties, they shall promptly together select two appraisers from the
list of eight appended hereto as Schedule 1.1(c) with each party
eliminating an appraiser until two remain. The two appraisers shall value
Farmland's interest in the Company within 30 days of the initial
notification to Farmland. The price of the Option shall be determined by
averaging the two appraisals. Both appraisals shall value the Company's
business as an ongoing business and shall do so by an analysis of expected
future cash flows (based upon historical cash flows adjusted to reflect a
fair market valuation of any changes in the Company's contracts with
Farmland, and to eliminate the impacts of non-recurring events). Upon
determination of the price of the Option, LOL will be permitted to
determine whether or not it wishes to exercise the Option at any time
within 60 days by providing at least 30 days prior written notice to
Farmland. In the event that LOL does not elect to exercise such Option
within the 60 day period, LOL's right to the Option shall be terminated.
If LOL does wish to exercise its Option, it shall within such 60 day
period notify Farmland. If within thirty days after the receipt of such
notice Farmland elects not to permit LOL the right to exercise the Option,
Farmland shall immediately notify LOL in writing of Farmland's election.
Upon receipt of such notice by LOL, (i) such Option right shall cease to
exist and be immediately cancelled, (ii) the voting rights of each person
on the members committee shall immediately be revised so that, in
aggregate, the voting power of the members of the members committee
appointed by a Member shall reflect the actual the actual financial
interest of such Member in the Company, and (iii) anything to the contrary
in Section 1.6 of this Agreement notwithstanding, all decisions of the
members committee shall thereafter be made upon a majority vote of the
voting power of the members thereof and shall not require the affirmative
vote of each of the Members or their representatives, provided however,
that actions listed in Section 1.6 as items (ii), (iv), (v), (vi), and
(viii) shall require the unanimous approval of both LOL and Farmland
representatives on the members committee as will other actions affecting
one Member or the other (as an investor in the Company) in a manner which
is material (except as to distributions which are not proportionate to
Members' respective economic interests), adverse, and not in proportion to
the economic interests of such Member.
1.2 Financing of the Company. LOL expects to have contributed 69.2% of the
equity capital of the Company, consisting of cash and the LOL Contributed Assets
referred to in Section 1.4. Farmland expects to have contributed 30.8% of the
equity capital of the Company, consisting of cash and the Farmland Contributed
Assets referred to in Section 1.5, subject to the provisions of the LLC
Agreement. The Parties shall arrange for financing of the joint venture pursuant
to the terms of the LLC Agreement.
1.3 Compliance with Laws. All matters referred to herein are subject to and
conditioned upon compliance with all applicable laws.
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1.4 LOL's Contribution to Company.
(a) Contribution of LOL Assets. At the Closing, in addition to any cash
amount required by the LLC Agreement, except as the parties may otherwise
agree, LOL shall contribute to the Company (i) all LOL's rights and
interest to real property used by it in the manufacture and wholesale
marketing of feed and feed ingredients in Xxxxx Xxxxxxx (xxx Xxxxxx
Xxxxxx, Xxxxxx and Mexico) listed on Schedule 1.4(a) (the "LOL Real
Property"), (ii) all of LOL's rights and interest in the Assigned
Investments and Agreements listed on Schedule 1.4(a) attached hereto
(including, without limitation, its interest and title to, and goodwill
attendant thereto, its ownership, equity, and governance interests in the
subsidiaries, joint ventures, and limited liability companies listed
therein), (iii) all of LOL's rights and interest in Other Assets (as
defined below) and (iv) the personal property listed on Schedule 1.4(a)
attached hereto (the "LOL PERSONAL PROPERTY") (collectively, the "LOL
CONTRIBUTED ASSETS"). The Parties hereby acknowledge and agree that the
LOL Contributed Assets shall be deemed for all purposes to have been
contributed to the Company effective as of the Closing Date, pursuant to
this Agreement. On the Closing Date, LOL would transfer merchantable and
usable inventories of feed and feed ingredients to Company at the lower of
cost or market. Current liabilities equal to the value of such inventories
transferred by LOL will also be transferred by LOL. Except for such
current liabilities, no debt shall be transferred to the Company and all
LOL Contributed Assets shall be contributed free and clear of any and all
liens except as may exist in accordance with the provisions of
subparagraph (d) of this Paragraph.
(b) Other Assets; Excluded Assets. As used herein, the term "OTHER ASSETS"
means the following items pertaining to the LOL Real Property (or any
portion thereof): (i) any and all rights, licenses, permits, betterments,
accretions, easements, and any personal property of every kind and
character owned by LOL (and/or any Affiliate thereof), attached to,
appurtenant to, located in, or used or useful in connection with the LOL
Real Property; (ii) all construction, engineering, consulting,
architectural and other similar contracts, and any and all amendments and
modifications thereto, relating to the LOL Real Property and all
warranties with respect thereto; (iii) all architectural, plans,
specifications, soils tests, engineering reports and similar materials
relating to the LOL Real Property; (iv) all deposits, performance bonds,
guarantees or other payments given or made with respect to the LOL Real
Property and any and all modifications and extensions thereto relating to
the LOL Real Property; (v) all governmental entitlements (including,
without limitation, all environmental reports, declarations, map
approvals, conditional use permits, and any other permits related to the
LOL Real Property), permissions, environmental clearances, rights,
licenses and permits which relate to the LOL Real Property; (vi) all
leases, licenses and occupancy agreements with respect to the LOL Real
Property; (vii) all rights and remedies of LOL against the party from
which LOL purchased the LOL Real Property; and (viii) all other general
intangibles relating to the development and/or use of the LOL Real
Property and the improvements thereon including, without limitation, all
refunds and payments of any kind relating to the ownership, operation, use
and/or disposition of the LOL Real Property, and all proceeds and claims
arising on account of any loss, damage to or taking of the LOL Real
Property (or any part thereof). Anything to the contrary herein
notwithstanding, all LOL's recoveries and rights of recovery relating to
the vitamin antitrust litigation or claims, and
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other class actions arising from or related to such litigation or claims
shall remain the property of LOL. Among the excluded assets are: the
accounts receivable of LOL relating to feed and feed ingredients which LOL
would not transfer to Company but which, upon LOL's request and at its
cost and expense, Company would assist LOL in collecting; any accrued but
unpaid rebates and patronage refunds relating to feed ingredients and
components purchased by LOL prior to the Closing Date anticipated to be
paid or allocated to LOL from third parties; and all of LOL's interest in
Project Explorer Xxxx XX Corporation, Malta Texo Holding Company, and Land
O'Lakes Multitecnologias Nutricionales de Mexico S.A de C.V. (together the
"MALTA CLEYTON COMPANIES"), MoArk LLC, Norco Holding Co., and the LOL
research farm.
(c) Transfer on an "AS-IS" Basis. Each Party acknowledges and agrees that,
except for the express representations and warranties set forth in this
Agreement, the Company is acquiring the LOL Contributed Assets "AS IS"
without any representation or warranty of LOL (or any other Party),
express, implied or statutory, as to the nature or condition of the
Contributed Assets, the condition of title to the Contributed Assets or
the fitness for use of the Contributed Assets.
(d) Prorations and Adjustments. The following shall be prorated and
adjusted between LOL and the Company as of the Closing Date, except as
otherwise specified:
(i) General real estate, personal property and ad valorem taxes and
assessments for the current tax year for the Contributed Assets with
LOL being responsible for the payment of such items for the period
before the Closing Date and the Company being responsible for such
payment for the period on and after the Closing Date.
(ii) Utility charges, if any, costs of maintaining the Contributed
Assets, if any, and such other items that are customarily prorated
in transactions of this nature shall be ratably prorated with LOL
being responsible for the payment of such items for the period
before the Closing Date and the Company being responsible for such
payment for the period on and after the Closing Date.
(e) Commissions or Fees. LOL hereby represents and warrants to Farmland
that no person or entity is entitled to any commission, broker's fee or
other compensation based on contacts or understandings between such
claimant and LOL or its Affiliates with respect to the contribution of the
LOL Contributed Assets.
1.5 Farmland's Contribution to Company.
(a) Contribution of Farmland Assets. At the Closing, in addition to any
cash amount required by the LLC Agreement, except as the parties may
otherwise agree, Farmland shall contribute to the Company (i) all
Farmland's rights and interest to real property used by it in the
wholesale marketing of feed and feed ingredient products in Xxxxx Xxxxxxx
(Xxxxxx Xxxxxx, Xxxxxx and Mexico), all as more specifically listed on
Schedule 1.5(a) (the "FARMLAND REAL PROPERTY"), (ii) all of Farmland's
rights and interest in the Assigned Investments and Agreements listed on
Schedule 1.5(a) attached hereto
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(including, without limitation, its interest and title to, and goodwill
attendant thereto, its ownership, equity, and governance interests in the
subsidiaries, joint ventures, and limited liability companies listed therein),
(iii) all of Farmland's rights and interest in Other Assets (as defined below);
and (iv) the personal property, listed on Schedule 1.5(a)) together with the
economic benefit of but not the title to those assets owned or used for the
production and distribution of Di-cal for use in animal feeds or feed
ingredients attached hereto (the "FARMLAND PERSONAL PROPERTY") (collectively,
the "FARMLAND CONTRIBUTED ASSETS"). The Parties hereby acknowledge and agree
that the Farmland Contributed Assets shall be deemed for all purposes to have
been contributed to the Company effective as of the Closing Date, pursuant to
this Agreement. On the Closing Date, Farmland would transfer merchantable and
usable inventories of feed and feed ingredients to Company at the lower of cost
or market. Current liabilities equal to the value of such inventories
transferred by Farmland will also be transferred by Farmland. Except for such
current liabilities, no debt shall be transferred to the Company and all
Farmland Contributed Assets shall be contributed free and clear of any and all
liens except as may exist in accordance with the provisions of subparagraph (d)
of this Paragraph.
(b) Other Assets; Excluded Assets. As used herein, the term "OTHER ASSETS"
means the following items pertaining to the Farmland Real Property (or any
portion thereof): (i) any and all rights, licenses, permits, betterments,
accretions, easements, and any personal property of every kind and
character owned by Farmland(and/or any Affiliate thereof), attached to,
appurtenant to, located in, or used or useful in connection with the
Farmland Real Property; (ii) all construction, engineering, consulting,
architectural and other similar contracts, and any and all amendments and
modifications thereto, relating to the Farmland Real Property and all
warranties with respect thereto; (iii) all architectural, plans,
specifications, soils tests, engineering reports and similar materials
relating to the Farmland Real Property; (iv) all deposits, performance
bonds, guarantees or other payments given or made with respect to the
Farmland Real Property and any and all modifications and extensions
thereto relating to the Farmland Real Property; (v) all governmental
entitlements (including, without limitation, all environmental reports,
declarations, map approvals, conditional use permits, and any other
permits related to the Farmland Real Property), permissions, environmental
clearances, rights, licenses and permits which relate to the Farmland Real
Property; (vi) all leases, licenses and occupancy agreements with respect
to the Farmland Real Property; (vii) all rights and remedies of Farmland
against the party from which Farmland purchased the Farmland Real
Property; and (viii) all other general intangibles relating to the
development and/or use of the Farmland Real Property and the improvements
thereon including, without limitation, all refunds and payments of any
kind relating to the ownership, operation, use and/or disposition of the
Farmland Real Property, and all proceeds and claims arising on account of
any loss, damage to or taking of the Farmland Real Property (or any part
thereof). Anything to the contrary herein notwithstanding, all Farmland's
recoveries and rights of recovery relating to the vitamin antitrust
litigation or claims, and other class actions arising from or related to
such litigation or claims shall remain the property of Farmland. Among the
excluded assets are: the accounts receivable of Farmland relating to feed
and feed ingredients which Farmland would not transfer to Company but
which, upon Farmland's request and at its cost and expense, Company would
assist Farmland in collecting; Farmland's Research Farm; all Farmland's
right title and interest in and to the
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assets and agreements used in the production and distribution of Di-cal;
and any accrued but unpaid rebates and patronage refunds relating to feed
ingredients and components purchased by Farmland prior to the Closing Date
anticipated to be paid or allocated to Farmland from third parties.
(c) Transfer on an "AS-IS" Basis. Each Party acknowledges and agrees that,
except for the express representations and warranties set forth in this
Agreement, the Company is acquiring the Farmland Contributed Assets "AS
IS" without any representation or warranty of Farmland (or any other
Party), express, implied or statutory, as to the nature or condition of
the Farmland Contributed Assets, the condition of title to the Farmland
Contributed Assets or the fitness for use of the Farmland Contributed
Assets.
(d) Prorations and Adjustments. The following shall be prorated and
adjusted between Farmland and the Company as of the Closing Date, except
as otherwise specified:
(i) General real estate, personal property and ad valorem taxes and
assessments for the current tax year for the Contributed Assets with
Farmland being responsible for the payment of such items for the
period before the Closing Date and the Company being responsible for
such payment for the period on and after the Closing Date.
(ii) Utility charges, if any, costs of maintaining the Contributed
Assets, if any, and such other items that are customarily prorated
in transactions of this nature shall be ratably prorated with
Farmland being responsible for the payment of such items for the
period before the Closing Date and the Company being responsible for
such payment for the period on and after the Closing Date.
(e) Commissions or Fees. Farmland hereby represents and warrants to LOL
that no person or entity is entitled to any commission, broker's fee or
other compensation based on contacts or understandings between such
claimant and Farmland or its Affiliates with respect to the contribution
of the Contributed Assets.
1.6 Governance of the Company. Farmland and LOL will each appoint two management
representatives to serve on a four person members committee which shall meet
every other month during the year 2000 and thereafter shall meet quarterly or
upon such other schedule as determined by the members committee. Except for the
following matters, in the event of a deadlock in matters presented to the
members committee of the Company, LOL will be permitted to cast a tie breaking
vote and would do so in its fiduciary capacity. The following matters will
require the approval of the members committee representatives of both Members of
the Company: (i) a material change the scope of the business of the Company (ii)
election to dissolve the Company; (iii) approval of the sale of all or
substantially all of its assets or significant assets; (iv) requiring any
additional capital contributions; (v) 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 economic interests; (vi) making any
change in income tax elections or changing accounting practices from those in
effect within LOL as of the Closing but only to the extent they have a material
impact on Farmland; (vii) reducing
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the number of meetings of the members committee to less than four per
calendar year, (viii) amending the Management Contract with LOL, and (vi)
adoption of the annual budgets and business plans for the Company and any
material amendments thereto (provided that such approvals shall be
considered by all parties on a basis of being a fiduciary of the Company
and shall not be unreasonably withheld, and provided further that
expenditures of capital amounts in any year which do not exceed the amount
of depreciation of existing assets in such year shall, by definition, be
deemed to be reasonable and shall not require the approval of both
Members).
1.7 Future Investments Requiring Equity Capital. To the extent that any future
investment, joint venture, or capital project of the Company requires equity
capital to be infused by the Parties, or which for any other reason requires the
consent of both parties, Farmland shall be granted the election to either
participate on a pro-rata basis or to avoid any capital contribution with
respect thereto. If Farmland does not elect to participate on a pro-rata basis,
the total economic interest of Farmland and the other Members of the Company
following such investment shall be reallocated, following the procedures
relating to appraisal described in Section 1.1(c), to accurately reflect the
contributions to the Company whether by contribution, merger, or acquisition.
1.8 Exhibits and Schedules. The Exhibits and Schedules attached to this
Agreement shall be construed with and be an integral part of this Agreement to
the same extent as if the same had been set forth verbatim herein. In case of
any inconsistency between the terms of this Agreement and the terms of any
Exhibit or Schedule, the terms of this Agreement shall prevail. The following
are the Exhibits and Schedules attached to and incorporated in this Agreement:
Name of Exhibit or Schedule Description
--------------------------- -----------
Schedule 1.1(c) List of Appraisers
Schedule 1.4(a) List of LOL Contributed Assets
Schedule 1.5(a) List of Farmland Contributed Assets
Schedule 3.1(c) LOL Consents and Approvals
Schedule 3.1(d) LOL Violations or Conflicts
Schedule 3.1(g) Liabilities or Obligations relating to LOL
Contributed Assets
Schedule 3.2(c) Farmland Consents and Approvals
Schedule 3.2(d) Farmland Violations or Conflicts
Schedule 3.2(g) Liabilities or Obligations relating to Farmland
Contributed Assets
Schedule 8.3 Exceptions to Historical Cost Allocations
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Exhibit A Defined Terms
Exhibit B Limited Liability Company Agreement
Exhibit C Xxxx of Sale and Assignment of Contracts and
Assumption Agreement
Exhibit D Management Contract
Exhibit E Farmland Feed Product Purchase Agreement
Exhibit F LOL Feed Product Purchase Agreement
Exhibit G Farmland Di-cal Product Purchase Agreement
ARTICLE II
DEFINITIONS
Capitalized terms used but not defined herein shall have the respective
meanings set forth or made applicable in Exhibit A hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 By LOL. LOL hereby represents and warrants to Farmland as follows:
(a) Organization. LOL is an agricultural cooperative duly organized,
validly existing and in good standing under the laws of the State of
Minnesota and has full power and authority to own and operate its assets
and properties and to carry on its business as presently being conducted
and as presently proposed to be conducted (including in the manner
contemplated by this Agreement) and is duly qualified to do business and
is in good standing in all jurisdictions in which the ownership or
occupancy of its properties or its activities presently make such
qualification necessary, except where the failure to so qualify would not
have a Material Adverse Effect upon it.
(b) Authority. LOL has all requisite corporate power and authority to
execute and deliver this Agreement and each Ancillary Agreement to which
it is a party, to perform its obligations hereunder and thereunder, to
contribute the Contributed Assets to the Company and to consummate the
other transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement and each such Ancillary
Agreement by LOL and the consummation by LOL of the transactions
contemplated hereby and thereby have been duly and validly authorized by
all requisite corporate proceedings of LOL. This Agreement and each
Ancillary Agreement that has been executed by LOL on or prior to the date
hereof have been duly and validly executed and
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delivered by LOL and each constitutes a legal, valid and binding
obligation of LOL, enforceable against LOL in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights generally and to general
principles of equity.
(c) Consents and Approvals. Except as set forth in Schedule 3.1(c)
attached hereto and made a part hereof, no Consents are required to be
obtained from, and no registrations, declarations and filings are required
to be made with, any third party or Governmental Authority to permit LOL
to execute, deliver and perform this Agreement and any Ancillary Agreement
to which it is a party. All terms and conditions contained in, or existing
in respect of, such Consents have been duly satisfied and performed to the
extent necessary prior to the date of the execution and delivery of this
Agreement.
(d) No Violations or Conflicts. The execution, delivery and performance of
this Agreement and each Ancillary Agreement to which it is a party by LOL
do not and will not, subject to those items set forth on Schedule 3.1(d),
(i) violate or conflict with any provision of, or result in the breach of,
any applicable statute, law, rule or regulation of any Governmental
Authority, the Articles of Incorporation or By-laws of LOL, or any
contract, agreement, indenture or other instrument or obligation to which
LOL is a party or by which LOL or any of its assets (including the
Contributed Assets) is bound or of any order, judgment, writ, injunction,
award, ruling or decree applicable to LOL, or (ii) constitute an event
which, after notice or lapse of time or both, would result in any such
violation, conflict, breach or termination, or result in a violation or
revocation of any permit from any Governmental Authority, regulatory body
or other third party, except to the extent that the occurrence of any of
the foregoing would not individually or in the aggregate have a Material
Adverse Effect on the ability of LOL to consummate the transactions
contemplated hereby or by any Ancillary Agreement.
(e) Litigation. There is no action, suit or proceeding pending, or to the
knowledge of LOL threatened, against LOL which questions the validity of
this Agreement, the Contributed Assets or any Ancillary Agreement or any
action taken or to be taken pursuant to or in connection with this
Agreement, the Contributed Assets or any Ancillary Agreement or which
would, if adversely determined, affect the ability of LOL to perform its
obligations hereunder or thereunder or have a Material Adverse Effect on
LOL.
(f) Compliance with Law. LOL and its Affiliates have conducted their
respective businesses in material compliance with applicable statutes and
other laws, rules, regulations, or interpretation of any Governmental
Authority and any Governmental Licenses.
(g) Contributed Assets. LOL has, and when the Contributed Assets are
contributed to the Company, the Company will have, good and marketable
title to the Contributed Assets, free and clear of any mortgages, liens,
claims, encumbrances, pledges, conditional sale agreements, security
agreements and charges in favor of any third party of any nature. Except
as disclosed on Schedule 3.1(g), there are no liabilities, including
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environmental liabilities, or obligations of any nature, whether absolute,
accrued, contingent or otherwise, relating to the Contributed Assets,
other than obligations which are in amounts which, in the aggregate, shall
not have a material impact on the value of the Contributed Assets. Subject
to the obtaining of the consents described in Schedule 3.1 (c), any
contracts included in the Contributed Assets are assignable and are in
full force and effect, no dispute or disagreement exists under any such
contract. LOL has made, or will make, available to Farmland true and
correct copies of each such contract. Neither LOL nor, to its knowledge,
any other party is in default in connection with any such contract.
3.2 By Farmland. Farmland hereby represents and warrants to LOL as follows:
(a) Organization. Farmland is a corporation duly organized, validly
existing and in good standing under the laws of Kansas; has full corporate
power and authority to own and operate its assets and properties and carry
on its business as presently being conducted and as presently proposed to
be conducted (including in the manner contemplated by this Agreement) and
is duly qualified to do business and is in good standing in all
jurisdictions in which the ownership or occupancy of its properties or its
activities presently make such qualification necessary, except where the
failure to so qualify would not have a Material Adverse Effect upon it.
(b) Authority. Farmland has all requisite corporate power and authority to
execute and deliver this Agreement and each Ancillary Agreement to which
it is a party, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement and each Ancillary
Agreement to which it is a party by Farmland and the consummation by
Farmland of the transactions contemplated hereby and thereby have been
duly and validly authorized by all requisite corporate proceedings
Farmland. This Agreement and each Ancillary Agreement that has been
executed by Farmland on or prior to the date hereof have been duly and
validly executed and delivered by such corporation and each such agreement
constitutes a legal, valid and binding obligation of Farmland, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditors' rights generally and to general principles of equity.
(c) Consents and Approvals. Except as set forth in Schedule 3.2(c)
attached hereto, and made a part hereof, no Consents are required to be
obtained from, and no registrations, declarations and filings, are
required to be made with, any third party or Governmental Authorities to
permit Farmland to execute, deliver and perform this Agreement and any
Ancillary Agreement to which such corporation is a party. All terms and
conditions contained in, or existing in respect of, such Consents have
been duly satisfied and performed, to the extent necessary prior to the
date of the execution and delivery of this Agreement.
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(d) No Violations or Conflicts. The execution, delivery and performance of
this Agreement and each Ancillary Agreement to which it is a party by
Farmland do not and will not, subject to those items set forth on Schedule
3.2(d) attached hereto, (i) violate or conflict with any provision of, or
result in the breach of, any applicable statute, law, rule or regulation
of any Governmental Authority, the Articles of Incorporation or By-laws of
Farmland or any contract, agreement, indenture or other instrument or
obligation to which Farmland is a party or by which Farmland or any of the
assets of Farmland is bound, or of any order, judgment, writ, injunction,
award, ruling or decree applicable to Farmland, or (ii) constitute an
event which, after notice or lapse of time or both, would result in any
such violation, conflict, breach or termination, or result in a violation
or revocation of any permit from any Governmental Authority, regulatory
body or other third party, except to the extent that the occurrence of any
of the foregoing would not individually or in the aggregate have a
Material Adverse Effect on the ability of Farmland to consummate the
transactions contemplated hereby or by an Ancillary Agreement.
(e) Litigation. There is no action, suit or proceeding pending, or to the
knowledge of Farmland threatened, against Farmland which questions the
validity of this Agreement or any Ancillary Agreement or any action taken
or to be taken pursuant to or in connection with this Agreement or any
Ancillary Agreement or which would, if adversely determined, affect the
ability of Farmland to perform its obligations hereunder or thereunder or
have a Material Adverse Effect on Farmland.
(f) Compliance with Law. Farmland and its Affiliates have conducted their
respective businesses in material compliance with applicable statutes and
other laws, rules, regulations, or interpretation of any Governmental
Authority and any Governmental Licenses.
(g) Contributed Assets. Farmland has, and when the Farmland Contributed
Assets are contributed to the Company, the Company will have, good and
marketable title to the Farmland Contributed Assets, free and clear of any
mortgages, liens, claims, encumbrances, pledges, conditional sale
agreements, security agreements and charges in favor of any third party of
any nature. Except as disclosed on Schedule 3.2(g), to the knowledge of
Farmland there are no liabilities, including environmental liabilities, or
obligations of any nature, whether absolute, accrued, contingent or
otherwise, relating to the Farmland Contributed Assets, other than
obligations which are in amounts which, in the aggregate, shall not have a
material impact on the value of the Farmland Contributed Assets. Subject
to the obtaining of the consents described in Schedule 3.2 (c), any
contracts included in the Farmland Contributed Assets are assignable and
are in full force and effect, no dispute or disagreement exists under any
such contract. Farmland has made, or will make, available to LOL true and
correct copies of each such contract. Neither Farmland nor, to its
knowledge, any other party is in default in connection with any such
contract.
3.3 Survival. All representations and warranties made herein shall survive the
execution and delivery of this Agreement and for a period of time equal to the
statutes of limitations applicable or related thereto.
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3.4 Finder's Fees. Each Party represents that it has not engaged or authorized
any broker, finder or similar agent who would be entitled to a commission or
other fee in respect of the transactions contemplated by this agreement.
ARTICLE IV
COVENANTS PRIOR TO CLOSING
4.1 Covenants . Each Party shall, prior to the Closing effected pursuant to this
Agreement:
(a) Due Diligence. Upon written request, make available to other Parties
any documents and materials reasonably necessary to permit them to conduct
legal, business and economic due diligence, provided however, that nothing
herein shall be deemed to permit a party hereto to conduct a Phase II
environmental audit on or with respect to the real property of another
party without the written permission of the other party given or withheld
in its sole discretion.
(b) Assistance to Company. Use reasonable efforts to assist the Company in
obtaining all necessary permits and licenses necessary for it to conduct
the business contemplated hereby.
(c) Covenant to Close. Have duly performed and complied with all
agreements and conditions required by this Agreement and the LLC Agreement
to be performed or complied with by it on or prior to the Closing Date.
4.2 Publicity. Any and all publicity concerning any matters contemplated under
this Agreement or an Ancillary Agreement shall be agreed upon in writing by all
Parties, unless otherwise required by law.
ARTICLE V
CLOSING
5.1 Closing Date. The Closing shall be held as soon as practicable and in any
event within 10 business days after each of the conditions referred to in
Sections 5.2 have been satisfied or waived (the "CLOSING DATE") at the offices
of LOL, or at such other date, time and place as the Parties shall mutually
agree; provided that the Agreement has not been terminated pursuant to Article
VI prior to such date. At the Closing, the actions and deliveries referred to in
Sections 5.3 and 5.4 shall take place and the documents referred to therein
shall be exchanged. The Parties agree and acknowledge that it is their mutual
intention to be bound in good faith by this Agreement in accordance with its
terms, it being agreed and understood that the Closing contemplated by this
Agreement shall be subject only to the satisfaction or waiver by the appropriate
Party of the conditions set forth in this Article V.
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5.2 Conditions to the Obligations of All Parties. The obligations of the Parties
set forth in this Agreement are subject to the following conditions:
(a) The results of legal, business and economic due diligence
investigations, if any, conducted by each of the Parties shall be
completed to the satisfaction of the investigating Party and the approval
of the transactions by the respective Boards of Directors of each party
prior to August 31, 2000;
(b) Each of the representations and warranties made by the Parties
shall be true and correct when made and as of the Closing Date;
(c) Each Party shall have performed and complied with all agreements and
covenants required by this Agreement to be performed or complied with by
it on or prior to the Closing Date;
(d) Restructuring of agreements between either of the Parties and
third parties as necessary;
(e) All necessary Consents from Governmental Authorities shall have been
obtained by the Parties; and
(f) As to Farmland only, LOL shall have obtained the consents and
approvals of the parties described on Schedule 3.1(c), and as to LOL only,
Farmland shall have obtained the consents and approvals of the parties
described on Schedule 3.2(c).
5.3 LOL and Farmland Actions and Deliveries at Closing. At or prior to the
Closing, each of the Parties shall:
(a) Execute and deliver a signed copy of the Ancillary Agreements to
which it is a party;
(b) Deliver a certificate signed by its duly authorized representative
stating that all its representations and warranties contained in this
Agreement and the LLC Agreement are true and correct as of the Closing
Date and all its covenants required to be performed as of the Closing Date
have been performed;
(c) Respectively deliver deeds in recordable form to the LOL Real
Property and the Farmland Real Property; and
(d) Execute and deliver a Xxxx of Sale and Assignment of Contracts
and Assumption Agreement in the form of EXHIBIT C attached hereto;
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5.4 Company Actions and Deliveries at Closing. At or prior to the Closing,
following execution and delivery of the LLC Agreement by the parties thereto,
the Certificate shall be executed and filed with the Secretary of State of the
State of Delaware.
ARTICLE VI
TERMINATION
6.1 Termination. Prior to the Closing, this Agreement shall be terminated
upon the occurrence of either of the following events:
(a) The written election of a Party that is not in material default or
material breach under any of the provisions of this Agreement, (i) if
there is a material default by the other Party in its obligations
hereunder, or there is a material breach by the other Party of its
representations and warranties hereunder, and such default or breach, as
the case may be, shall not have been cured by the defaulting or breaching
Party within twenty (20) business days after notice of such default or
breach has been given by the non-defaulting, non-breaching Party to the
defaulting Party or (ii) if the Closing has not occurred by October 1,
2000;
(b) The written election of the Party not subject to the same, upon (i)
the admission in writing by a Party of its inability to pay its debts as
they become due; (ii) the institution by a Party of proceedings for relief
as a debtor under United States law, as now constituted or hereafter in
effect, including, without limitation, Title 11 of the United States
Bankruptcy Code, or under any state or other law for the relief of
debtors; (iii) the institution against a Party or its direct or indirect
parent of any proceeding seeking to adjudicate it bankrupt or insolvent,
or seeking liquidation or reorganization under any bankruptcy, insolvency
or similar laws for the relief of debtors, or seeking the appointment of a
receiver or equivalent official for any substantial part of its assets,
and such proceeding shall not have been dismissed or withdrawn within
sixty (60) days from the date of the institution thereof; (iv) the making
by a Party or its direct or indirect parent of an assignment for the
benefit of creditors; or (v) the appointment of a receiver or trustee for
the business or properties of a Party or its direct or indirect parent.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification by a Party. Subject to Section 7.2, each Party (the
"INDEMNIFYING PARTY") shall indemnify, defend and hold harmless the Company, the
other Party, the other Party's Affiliates, and the other Party's and each such
Affiliate's employees, officers, directors and agents, and the Company's
officers and Representatives (collectively the "INDEMNIFIED PERSONS") from and
against any and all claims, demands, actions, suits, damages, liabilities,
losses, costs and expenses (including reasonable attorneys' fees), to the extent
caused by, resulting from or arising out of or in connection with any of the
following:
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(a) The breach of, or misrepresentation contained in, any written
representation or warranty made by the Indemnifying Party or its
Affiliates in this Agreement, in any Ancillary Agreement, in any officer's
certificate delivered hereunder, or in any written agreement between a
Party and the Company;
(b) Conditions existing at the time of contribution or transfer of any
property or assets to the Company with respect to property or assets so
contributed or transferred by the Indemnifying Party;
(c) The breach or default in performance of any covenant or agreement
required to be performed by the Indemnifying Party contained in the
Agreement or any Ancillary Agreement; or
(d) Any claim, action, suit or proceeding or threat thereof, made or
instituted as a result of acts or omissions of the Indemnifying Party or
its Affiliates unrelated to the business and operations of the Company or
outside the scope of the Indemnifying Party's rights or authority
conferred by this Agreement.
7.2 Survival; Limitations; Procedures
(a) The indemnification obligations contained in Section 7.1 shall survive
the Closing and shall remain in effect for a period of five years after
the Closing Date.
(b) The rights and remedies provided to the Parties and the Company in
this Agreement are cumulative and non-exclusive and shall not preclude any
other right or remedy available to any Party or the Company at law or in
equity.
(c) Notwithstanding any other provision hereof, neither the Company nor
any Party shall be liable to any other Party or its Affiliates, the
Company, or any other Indemnified Person for special, indirect, punitive
or consequential damages, including but not limited to loss of profit.
(d) If the Indemnifying Party makes any payment in respect of indemnity
obligations under Section 7.1, it shall be subrogated, to the extent of
such payment, to all rights and remedies of the Indemnified Person to any
insurance benefits or other claims of the Indemnified Person with respect
to such claim.
(e) Notwithstanding any other provision hereof, neither the Company nor
any Party shall be liable to any other Party or its Affiliates for debts,
liabilities or any other obligations except as specifically assumed in a
writing in or pursuant to this Agreement.
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ARTICLE VIII
POST CLOSING
8.1 Extension of Membership or Patronage Rights. LOL and Farmland will each as
soon as practical following closing extend an offer of membership and the
ability to procure feed and feed ingredient products through the Company on a
cooperative basis as facilitated by each of them, the intention being that all
qualified patrons of LOL and Farmland will be entitled to participate on a
patronage basis in the patronage sourced earnings of both Farmland and LOL
derived from the Company. Except as may be otherwise agreed by the Members, all
marketing of feed and feed ingredient products by the Company is anticipated to
be for the benefit of members and patrons of Farmland and LOL with the intention
being that Farmland and LOL will be able to treat the earnings therefrom as
patronage business done with or for their respective members and patrons as
permitted under the Internal Revenue Code. Earnings of the Company will be split
on the basis of the economic interests of the parties as determined from time to
time.
8.2 Non-Competition.
(a) During the term of the Company, Farmland and, except with respect to
the Malta Cleyton Companies, MoArk LLC, and Norco Holding Co., LOL agree
not to directly or indirectly engage in the wholesale marketing of feed
and feed ingredients in North America. In the event of a consummated
exercise of the Option as herein provided, Farmland agrees not to directly
or indirectly engage in the wholesale marketing of feed and feed
ingredients in North America for a period of five (5) years following the
exercise of the Option. This paragraph shall not apply to the sale of
grain, grain processed products or byproducts being sold by Farmland which
may be considered feed ingredients. If Farmland acquires or proposes to
acquire principally wholesale feed assets through merger, consolidation,
as part of an acquisition of all or substantially all of the assets of
another person (the "Acquisition"), LOL and Farmland shall negotiate in
good faith for a period of 120 days following the Acquisition by Farmland
to reach agreement on sale, lease or management of said assets to or by
LOL and/or the Company. If LOL and Farmland are unable to reach agreement
of the terms of the lease, sale or management agreement, such assets
shall, within a two (2) year period following the acquisition by Farmland,
be sold or transferred to a third party which is unrelated by ownership or
by continuing contract to Farmland. Pending such sale or transfer, such
assets shall to the extent legally permissible be operated and managed by
LOL for the sole economic benefit of Farmland. To the extent such
management and operation is not legally permissible in the reasonable
determination of LOL, such assets shall, pending sale or transfer, be
operated by Farmland on a full arms length basis for its own account.
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(b) The Parties believe that the restrictive covenant contained in this
paragraph is reasonable. However, if any court having jurisdiction shall
at any time hereafter hold this restriction to be unenforceable or
unreasonable, whether as to scope, territory or period of time specified
herein, and if such court shall declare or determine the scope, territory
or period of time which it deems to be reasonable, such scope, territory
or period of time shall be deemed to be reduced to that declared or
determined by said court to be reasonable.
(c) Each Party recognizes that in the event of violation of the terms of
the above covenant, the other Party will suffer irreparable damages and
that it will be difficult if not impossible to compute actual damages
sustained by the Party as the result of such unauthorized competition.
Therefore, the Parties agree that each Party shall be entitled to apply to
a court of competent jurisdiction to enjoin any breach, threatened or
actual, of the covenants contained herein.
8.3 Management Contract; Employees; Business Plan. The Company and LOL shall
enter into a management contract substantially in the form of Exhibit D attached
hereto pursuant to which LOL shall manage and operate the business and affairs
of, and shall provide all staff services for, the Company at LOL's cost
(including reasonable and equitable overhead expenses) of providing such
service. Subject to exceptions described in Schedule 8.3, if any, the historic
allocation method and cost level of LOL's provision of such services shall be
deemed a safe harbor with respect to such services. The term of the management
contract shall be continuing for the term of the Company. LOL shall submit an
annual budget and business plan to the members committee of the Company for
approval. LOL shall be subject to the approved budget and business plan in
managing the Company. 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. As
part of its management authority, LOL shall select the President and the other
officers and employees of the Company and the location of its principal offices;
provided that, prior to selecting officers of the Company, the Members shall
meet to assist LOL in determining which Farmland employees are important to
maintaining desirable relationships in the feed and feed ingredients businesses.
LOL shall give due consideration to maintaining the integrity of business
operations and relationships in selecting officers and employees of the Company.
In providing services pursuant to the management agreement LOL shall have a
fiduciary duty to the Company, and shall be responsible to the Company for its
acts and omissions on a standard of gross negligence. For an appropriate period
following the Closing, as may be determined by LOL, LOL and Farmland shall each
lease such employees to LOL as may be determined by LOL. Thereafter, such
employees shall become employees of LOL.
8.4 Feed Supply Agreements. The parties will at closing enter into supply
agreements substantially in the form of Exhibit E with respect to Farmland and
of Exhibit F with respect to LOL for branded feed, specialty feeds, catfish,
swine and cattle feed (to the extent the purchase of such feed is controlled or
influenced by any of the Parties), and ingredients excluding grain (with
appropriate liquidated damage amounts) for the purchase from the Company by the
Parties (and third parties to the extent the Parties may control or influence
their purchase of feed or feed ingredients) of their requirements of such
products. The term of such agreements shall run for
17
the longer of the term of the Company or, if LOL exercises the Option, for five
(5) years following the exercise of the Option by LOL. Terms, including price
terms, of such agreements will be no less favorable than terms provided by the
Company to other purchasers similarly situated. If the price and other terms
relating to the purchase and sale of any such product is not competitive with
those of other suppliers willing and able to provide such product to the parties
on a similar quantity and quality basis, the parties shall be excused or
released from their obligations with respect to such product unless the price
and other terms are modified to be competitive.
8.5 Di-cal Agreement. The parties will at closing enter into a supply agreement
between the Company and Farmland relating to the operation of the Di-cal assets
substantially in the form of Exhibit G. Said agreement shall continue for a term
of five (5) years following a consummation by LOL of an exercise of the limited
Option to acquire Farmland's interest in the Company by LOL. The agreement will
reflect cost allocations, product pricing and other terms so as to provide the
Company with the opportunity to receive the economic benefit and cash flow from
the Di-cal assets as was used to determine the contribution of the Di-cal
earnings in the valuation of Farmland's interest in the Company.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. The Parties shall bear their own costs and expenses incurred in
connection with the performance of their obligations under this Agreement. Any
acquisition or professional fees incurred by an party in connection with the
transactions contemplated hereby shall be paid by such party and shall not be a
liability of the Company.
9.2 Exchange of Information. Neither Party nor any of its Affiliates shall prior
to the Closing Date produce to or exchange with the other Party any
competitively sensitive information unless counsel to each Party has reached the
independent determination, made in good faith, that the production or exchange
of such information will not violate Sections 1 and 2 of the Xxxxxxx Act, 15
U.S.C. Sections 1, 2, Section 7 and 7A of the Xxxxxxx Act, 15 U.S.C.
Sections 18, 18A, and Section 5 of the Federal Trade Commission Act, 15
U.S.C. Section 45. For these purposes, the term "competitively sensitive
information" shall mean: (i) information concerning allowable and unallowable
costs, including rates for services and price quotes or bids provided to any
government agency or other customer, (ii) trade secrets or confidential
practices, methods or processes, or (iii) any business plans, strategic plans or
competitive strategies.
9.3 Co-Branding. All feed products sold by the Company shall be branded with
such trademarks and tradenames, including those of Farmland and LOL, so as to
preserve and maximize the feed business of the Company. The parties each may
also limit the duration or nature of use of their brands which are also used in
their businesses which are not part of the transferred feed businesses. It is
anticipated that the "Farmland" brand shall eventually be eliminated from the
feed business. The duration of licenses permitting the Company to use the brand
names shall be mutually agreed upon between LOL and Farmland.
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9.4 Notice. All notices, reports, requests, demands and other communications
under or in connection with this Agreement or any other agreements entered into
between the Parties in connection with this Agreement shall be written in the
English language and shall be sent by registered airmail, postage prepaid,
return receipt requested, and addressed as follows, and all notices, reports,
requests, demands and other communications shall be deemed to have been given on
the date of receipt indicated on the return receipt.
If to Farmland: Farmland Industries, Inc.
0000 X. Xxx Xxxxxxxxxx
P. O. Xxx 0000
Xxxxxx Xxxx, XX 00000
Attn: Legal Department
If to LOL: Land O'Lakes, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Law Department
Any Party may change its postal address for the purpose of this Section 9.4 by
notice given to the other Parties in the manner set forth above.
9.5 Assignability; Transferability of Interests in the Company. Except as
otherwise expressly provided in this Agreement, no Party shall assign or
transfer or otherwise dispose of to any third party all or any part of this
Agreement or any of the rights or obligations to accrue hereunder, without the
prior written consent of the other Parties; provided that restrictions, if any,
on the transfer of any interest in the Company shall be as set forth in the LLC
Agreement.
9.6 Entire Agreement and Non-Waiver.
(a) This Agreement and the Ancillary Agreements constitute the entire
and only agreement among the Parties hereto relating to the subject
matter of the joint venture arrangement, and supersede and cancel all
previous negotiations, agreements, commitments or representations (if
any), oral or written, in respect thereto, and shall not be discharged,
changed or modified in any manner except by instruments signed by duly
authorized representatives of the Parties.
(b) Any failure by any Party to enforce any provision of this Agreement
shall not be considered as constituting a waiver of that Party's right
to enforce thereafter the same provision or other provisions hereof
whether or not of similar character.
9.7 Further Assurances. Each Party hereto agrees to perform any further acts,
and to execute and deliver (with acknowledgment, verification, and/or affidavit,
if required) any further documents and instruments, as may be reasonably
necessary or desirable to implement and/or accomplish the provisions of this
Agreement and the transactions contemplated herein.
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9.8 No Third Party Beneficiaries. This Agreement is solely for the benefit of
the Parties hereto and no other person or entity is entitled to rely upon or
benefit from this Agreement or any term hereof, except by a writing signed by
all of the Parties hereto.
9.9 Modification. The terms of this Agreement may not be modified, amended, or
otherwise changed in any manner, except by an instrument in writing executed by
each of the parties hereto.
9.10 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the day and year first above written.
FARMLAND INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President & Chief Executive Officer
LAND O'LAKES, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President & Chief Executive Officer
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EXHIBIT A
DEFINED TERMS
The definitions shall apply equally to both the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be followed by the
phrase "without limitation." All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed to be references to Articles and Sections
of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. The headings of the Articles and Sections are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. Unless the context shall
otherwise require, any reference to any contract or law are to it as amended and
supplemented from time to time (and, in the case of a statute or regulation, to
any successor provision). Any reference in this Agreement to a "day" or a number
of "days" (without the explicit qualification of "business") shall be
interpreted as a reference to a calendar day or number of calendar days. If any
action or notice is to be taken or given on or by a particular calendar day, and
such calendar day is not a business day, then such action or notice shall be
deferred until, or may be taken or given on, the next business day. Unless
otherwise specifically indicated, the word "or" shall be deemed to be inclusive
and not exclusive.
"AFFILIATE", when used with reference to a specified Person, shall mean a
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the specified Person. For
purposes of this definition, "CONTROL" shall mean the direct or indirect actual
or beneficial ownership of securities or other interests having by their terms
ordinary voting power to elect a majority of the board of directors or others
performing similar functions with respect to such Person.
"AGREEMENT" means this Joint Venture Agreement among CHS, Farmland, and
LOL.
"ANCILLARY AGREEMENTS" means the documents listed as Exhibits B through L
in Article I, in each case as such document may be amended, restated or
otherwise modified from time to time in accordance with the terms of such
document and this Agreement.
"CLOSING" means the meeting at which the actions and deliveries referenced
in Article V are made, and "CLOSING DATE" means the date of the Closing as also
set forth in Section 5.1.
"COMPANY" shall have the meaning set forth in Section 1.1.
"CONSENT" means any consent, approval, permit, or other authorization of,
or declaration or notice to or filing with, any Governmental Authority or any
other Person.
"FARMLAND CONTRIBUTED ASSETS" shall have the meaning set forth in Section
1.5(a).
"FARMLAND PERSONAL PROPERTY" shall have the meaning set forth in Section
1.5(a).
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"DISPUTE" means any dispute, controversy or claim arising out of or
relating to this Agreement regarding any alleged or actual breach, termination
or invalidity thereof.
"EXHIBIT" means any of Exhibits A through D attached to this Agreement.
"FARMLAND" means Farmland Industries, Inc.
"GOVERNMENTAL AUTHORITY" means any nation or government, any region, state
or other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any Person owned or controlled through stock or capital
ownership or otherwise by any of the foregoing.
"GOVERNMENTAL LICENSES" means all licenses, permits, and other
authorizations issued by any Governmental Authority.
"INDEMNIFIED PERSONS" shall have the meaning set forth in Section 7.1.
"INDEMNIFYING PARTY" shall have the meaning set forth in Section 7.1.
"LLC AGREEMENT" shall have the meaning set forth in Section 1.
"LOL" means Land O'Lakes, Inc.
"LOL CONTRIBUTED ASSETS" shall have the meaning set forth in Section
1.4(a).
"LOL PERSONAL PROPERTY" shall have the meaning set forth in Section
1.4(a).
"KNOWLEDGE" means the actual knowledge of the officers of the Party and
its Affiliates as of the date of this Agreement.
"MATERIAL ADVERSE EFFECT" means, with respect to a specific asset,
business or Person, any fact, circumstance or condition that would reasonably be
expected to have a material adverse effect on the business, operations, assets,
financial condition or prospects thereof, taken as a whole.
"MEMBERS" means Farmland and LOL, collectively.
"OTHER ASSETS" shall have the meaning set forth in Section 1.5(b).
"PARTY" and "PARTIES" shall have the meaning set forth in the Preamble.
"RECIPIENT" shall have the meaning set forth in Section 8.2(c).
"SCHEDULE" means any of Schedules attached to this Agreement.
"THIRD PARTY CLAIM" shall have the meaning set forth in Section 7.2(d).
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