AMENDMENT TO THE LIMITED LIABILITY COMPANY AGREEMENT OF NATIONAL BEEF PACKING COMPANY, LLC
EXHIBIT 3.1(b)
AMENDMENT
TO THE
LIMITED LIABILITY
COMPANY AGREEMENT
OF
NATIONAL BEEF
PACKING COMPANY, LLC
This Amendment (this "Amendment") to the Limited Liability Company Agreement (the "Agreement") of National Beef Packing Company, LLC is entered into and made effective as of August 6, 2003, by and among U.S. Premium Beef, LLC ("USPB"), NBPCo Holdings, LLC ("NBPCo Holdings"), Xxxx X. Xxxxxx ("Xxxxxx"), French Basin Land & Cattle Co. LLC ("MillerCo"), Xxxxxxx X. Xxxxx ("Xxxxx"), TKK Investments, LLC ("KleinCo"), and S-B Enterprises V, LLC ("SmithCo")(with certain other Persons from time to time party to the Agreement, collectively the "Members").
Recitals
WHEREAS, the Members previously entered into the Limited Liability Company Agreement of National Beef Packing Company, LLC (the "Company"), dated as of August 6, 2003 (the "Agreement");
WHEREAS, the Members want to confirm their agreement with respect to the computation of the adjustment under section 754 of the Internal Revenue Code of 1986 with respect to the acquisition of the interests (the "Farmland Interests") held directly or indirectly by Farmland Industries, Inc.;
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Members do hereby promise and agree as follows (all capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Agreement):
1. Allocation of Liabilities on August 6, 2003. The liabilities of the Company and its predecessors were allocated as of the acquisition of the Farmland Interests among the Members consistent with the amount of section 754 adjustments attributable to each of the Members, as reflected in this Amendment. This allocation of liabilities does not alter the allocation of liabilities after August 6, 2003, which liabilities shall be allocated among the Members in accordance with the provisions of the Agreement.
2. Confirmation of Section 754 Adjustment. The amount of the Section 754 adjustment allocable among the Members attributable to the acquisition of the Farmland Interests is as follows:
|
Member |
Portion of Section 754 Adjustment |
|
USPB |
$72,361,142 |
|
NPBCo Holdings |
38,666,051 |
|
Xxxxxx |
- |
|
MillerCo |
9,602,768 |
|
Xxxxx |
- |
|
KleinCo |
4,801,384 |
|
SmithCo |
2,652,471 |
|
Total |
$128,083,817 |
3. Special Allocation Among NBPCo Holdings, MillerCo, KleinCo and SmithCo. The Members agreed that the portion of deductions allocable to NBPCo Holdings, MillerCo, KleinCo and SmithCo were adjusted for the fiscal year ended with respect to August 31, 2003 as follows:
|
Member |
Increased Deduction/ (Decreased Deduction) |
|
NPBCo Holdings |
$98,941 |
|
MillerCo |
(68,039) |
|
KleinCo |
(34,020) |
|
SmithCo |
3,118 |
|
Total |
- |
These special allocations of deductions shall be reversed out in the subsequent years consistent with the Members' realization of the section 754 adjustments attributable to the purchase of the Farmland Interests.
4. Continued Force and Effect. Except as amended herein, all provisions of the Agreement shall remain and continue in force and effect.
5. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute an agreement, notwithstanding that all parties are signatories to the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on July 7, 2005.
MEMBERS
U.S. PREMIUM BEEF, LLC
By: /s/ XXXXXX X. XXXX, CEO
NBPCO HOLDINGS, LLC
By: XXXXX XXXX
FRENCH BASIN LAND & CATTLE CO. LLC
By: /s/ XXXX X. XXXXXX
TKK INVESTMENTS, LLC
By: /s/ XXXXXXX X. XXXXX
S-B ENTERPRISES V, LLC
By: /s/ XXXXX X. XXXXX
/s/ XXXX X. XXXXXX
XXXX
X. XXXXXX
/s/ XXXXXXX X. XXXXX
XXXXXXX
X. XXXXX
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First Amended Exhibit 3.1
MEMBERS OF THE
COMPANY, CAPITAL
CONTRIBUTIONS AND ISSUANCE OF UNITS
1. Outstanding Units
|
Members |
Class A Units (1) |
Class B-1 Units (1) |
Class B-2 Units (2) |
Class C Units |
Percentage Interests (Class B Units only) |
|
USPB |
88,781,384 |
10,000,000 |
--- |
--- |
53.16% |
|
NBPCo Holdings |
31,553,956 |
3,810,044 |
--- |
--- |
20.26% |
|
MillerCo |
--- |
2,247,619 (3) |
--- |
--- |
11.95% |
|
Xxxxxx |
--- |
--- |
609,524 (4) |
--- |
3.24% |
|
KleinCo |
--- |
1,123,810 (5) |
--- |
--- |
5.98% |
|
TMKCo |
--- |
--- |
304,762 (6) |
--- |
1.62% |
|
SmithCo |
1,514,286 |
714,286 (7) |
--- |
--- |
3.80% |
|
Total |
121,849,626 |
17,895,759 |
914,286 |
--- |
100.00% |
(1) Initial Capital Contribution with respect to Class A Units and Class B-1 Units is an amount in U.S. Dollars equal to the number of Units of such Class.
(2) Initial Capital Contribution with respect to Class B-2 Units is zero.
(3) Of these Units, 1,104,762 are designated as Management Units, subject to repurchase in accordance with Section 3.7.
(4) These 609,524 Units are designated as Management Units, subject to repurchase in accordance with Section 3.7.
(5) Of these Units, 552,381 are designated as Management Units, subject to repurchase in accordance with Section 3.7.
(6) These 304,762 Units are designated as Management Units, subject to repurchase in accordance with Section 3.7.
(7) Of these Units, 428,571 are designated as Management Units, subject to repurchase in accordance with Section 3.7.
2. Units Issuable Pursuant to Deferred Equity Incentive Compensation Agreements
|
Members |
Class A Units |
Class C Units |
|
Xxxxxx |
6,057,143 |
609,524 (1) |
|
Xxxxx |
3,028,571 |
304,762 (2) |
(1) These 609,524 Units are designated as Management Units, subject to repurchase in accordance with Section 3.7.
(2) These 304,762 Units are designated as Management Units, subject to repurchase in accordance with Section 3.7.
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3. Capitalization Assuming Full Issuance of Units Subject to Deferred Equity Incentive Compensation Agreements
|
Members |
Class A Units (1) |
Class B-1 Units (1) |
Class B-2 Units (2) |
Class C Units (1) |
Percentage Interests (Class B Units only) |
|
USPB |
88,781,384 |
10,000,000 |
--- |
--- |
53.16% |
|
NBPCo Holdings |
31,553,956 |
3,810,044 |
--- |
--- |
20.26% |
|
MillerCo |
--- |
2,247,619 |
--- |
--- |
11.95% |
|
Xxxxxx |
6,057.143 |
--- |
609,524 |
609,524 |
3.24% |
|
KleinCo |
--- |
1,123,810 |
--- |
--- |
5.98% |
|
Xxxxx |
3,028,571 |
--- |
--- |
304,762 |
0% |
|
SmithCo |
1,514,286 |
714,286 |
--- |
--- |
3.80% |
|
TMKCo |
--- |
--- |
304,762 |
--- |
1.62% |
|
Total |
130,935,340 |
17,895,759 |
914,286 |
914,286 |
100.00% |
(1) Initial Capital Contribution, when and as issued, is equal to an amount in U.S. Dollars equal to the number of Units of such Class.
(2) Initial Capital Contribution with respect to Class B-2 Units is zero.
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