EXHIBIT 10.18
SUPERIOR TOMATO ASSOCIATES, L.L.C.
OPERATING AGREEMENT
February 19, 1996
TABLE OF CONTENTS
Page
Article I Certain Definitions. . . . . . . . . . . . . . . . . . . . . . 2
1.1 Certain Definitions. . . . . . . . . . . . . . . . . . . . . . 2
(a) Accounting Period. . . . . . . . . . . . . . . . . . . . 2
(b) Additional Member. . . . . . . . . . . . . . . . . . . . 2
(c) Adjusted Asset Value . . . . . . . . . . . . . . . . . . 2
(d) Affiliate. . . . . . . . . . . . . . . . . . . . . . . . 2
(e) Capital Account. . . . . . . . . . . . . . . . . . . . . 2
(f) Capital Commitment . . . . . . . . . . . . . . . . . . . 3
(g) Code . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(h) Company Income Or Loss . . . . . . . . . . . . . . . . . 3
(i) Company Percentage . . . . . . . . . . . . . . . . . . . 3
(j) Depreciation . . . . . . . . . . . . . . . . . . . . . . 3
(k) Development And Marketing Agreement. . . . . . . . . . . 3
(l) Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . 3
(m) in interest; Majority In Interest. . . . . . . . . . . . 3
(n) Manager. . . . . . . . . . . . . . . . . . . . . . . . . 3
(o) Member . . . . . . . . . . . . . . . . . . . . . . . . . 3
(p) Members' Council . . . . . . . . . . . . . . . . . . . . 4
(q) Officers . . . . . . . . . . . . . . . . . . . . . . . . 4
(r) Treasury Regulations . . . . . . . . . . . . . . . . . . 4
Article II Name, Purposes And Place Of Business Of Company. . . . . . . . 4
2.1 Company Name . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Company Purposes . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Principal Place Of Business. . . . . . . . . . . . . . . . . . 4
2.4 Registered Agent And Office. . . . . . . . . . . . . . . . . . 4
Article III Period Of Duration . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Period Of Duration . . . . . . . . . . . . . . . . . . . . . . 5
Article IV Names, Admission, Rights And Obligations . . . . . . . . . . . 5
4.1 Names And Addresses. . . . . . . . . . . . . . . . . . . . . . 5
4.2 Admission Of Members . . . . . . . . . . . . . . . . . . . . . 5
4.3 Limitation Of Liability. . . . . . . . . . . . . . . . . . . . 5
4.4 Company Debt Liability . . . . . . . . . . . . . . . . . . . . 5
4.5 Restrictions On Transfers Of Company Interests . . . . . . . . 5
4.6 Withdrawal Of Member . . . . . . . . . . . . . . . . . . . . . 6
Article V Management, Duties And Restrictions. . . . . . . . . . . . . . 6
5.1 Management . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.2 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 The Members' Council . . . . . . . . . . . . . . . . . . . . . 6
5.4 Resignation Of Manager, Officers And Members Of Members'
Council; Removal of Manager. . . . . . . . . . . . . . . . . . 6
5.5 Determination By The Manager. . . . . . . . . . . . . . . . . 6
5.6 Restrictions On The Members. . . . . . . . . . . . . . . . . . 7
5.7 Manager's And Officers' Standard Of Care . . . . . . . . . . . 7
5.8 No Exclusive Duty To Company . . . . . . . . . . . . . . . . . 7
5.9 Indemnity Of The Manager And Officers. . . . . . . . . . . . . 7
Article VI Capital Accounts; Capital Commitment . . . . . . . . . . . . . 8
6.1 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 Initial Capital Contributions. . . . . . . . . . . . . . . . . 8
6.3 Additional Capital Commitments . . . . . . . . . . . . . . . . 8
6.4 Noncontributing Members. . . . . . . . . . . . . . . . . . . . 9
6.5 Additional Capital Contributions; Right Of First Refusal . . . 9
6.6 Allocations To New Members . . . . . . . . . . . . . . . . . . 10
Article VII Allocations. . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.1 Allocation Of Company Income Or Loss . . . . . . . . . . . . . 10
7.2 Income Tax Allocations . . . . . . . . . . . . . . . . . . . . 10
Article VIII Fees And Expenses. . . . . . . . . . . . . . . . . . . . 10
8.1 Management Compensation. . . . . . . . . . . . . . . . . . . . 10
Article IX Distributions To And Withdrawals By Members. . . . . . . . . . 10
9.1 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9.2 Withdrawals By Members . . . . . . . . . . . . . . . . . . . . 10
9.3 Distributions. . . . . . . . . . . . . . . . . . . . . . . . . 11
9.4 Members' Obligation To Repay Or Restore. . . . . . . . . . . . 11
Article X Protective Rights. . . . . . . . . . . . . . . . . . . . . . . 11
10.1 Approval By Members. . . . . . . . . . . . . . . . . . . . . . 11
10.2 Approval By Other Members. . . . . . . . . . . . . . . . . . . 12
Article XI Dissolution Of Company . . . . . . . . . . . . . . . . . . . . 12
11.1 Early Termination Of The Company . . . . . . . . . . . . . . . 12
11.2 Dissolution Procedures . . . . . . . . . . . . . . . . . . . . 12
Article XII Reports And Financial Accounting . . . . . . . . . . . . . . . 13
12.1 Financial Records. . . . . . . . . . . . . . . . . . . . . . . 13
12.2 Annual Reports . . . . . . . . . . . . . . . . . . . . . . . . 13
12.3 Tax Matters Member . . . . . . . . . . . . . . . . . . . . . . 13
12.4 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12.5 Audit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Article XIII Amendment. . . . . . . . . . . . . . . . . . . . . . . . 14
13.1 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Article XIV Other Provisions . . . . . . . . . . . . . . . . . . . . . . . 14
14.1 Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.2 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.4 Binding Agreement. . . . . . . . . . . . . . . . . . . . . . . 14
14.5 Entire Agreement; Captions . . . . . . . . . . . . . . . . . . 15
14.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 15
14.7 Waiver Of Action For Partition . . . . . . . . . . . . . . . . 15
14.8 Execution Of Additional Instruments. . . . . . . . . . . . . . 15
14.9 Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.10 Rights And Remedies Cumulative . . . . . . . . . . . . . . . . 15
14.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 15
14.12 Heirs, Successors And Assigns. . . . . . . . . . . . . . . . . 15
14.13 Creditors. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SUPERIOR TOMATO ASSOCIATES, L.L.C.
OPERATING AGREEMENT
This Operating Agreement (the "Agreement") is made as of the 19th day of
February, 1996, by and among Agritope, Inc., a Delaware corporation
("Agritope"), Sunseeds Company, a --------------- corporation ("Sunseeds"),
and Xxxxxx and Xxxxxxxxxx Sales Company, Inc., a --------------- corporation
("A&W") with respect to the operation of Superior Tomato Associates, L.L.C., a
Delaware limited liability company (the "Company").
Whereas, Superior Tomato Associates is being formed, pursuant to the
provisions of the Delaware Limited Liability Company Act (the "Delaware Act"),
upon the filing of a Certificate of Formation with the Secretary of State of
the State of Delaware;
Whereas, the purpose of the Company is to combine Sunseeds' tomato seed
genetics and know-how with Agritope's SAMase technology and know-how and A&W's
growing, packing and distribution know-how to produce and commercialize in
North America economically superior tomatoes for the fresh market; the product
(the "Product") shall be fresh market cherry, roma and vine ripened large
fruited tomato varieties using seed developed by the Company;
Whereas, the Members have entered into this Agreement, setting forth
their respective ownership interests in the Company and the principles by
which it will be operated and governed;
Whereas, concurrently with the execution and delivery of this Agreement,
the parties are entering into a Development and Marketing Agreement, under
which:
Agritope will grant to the Company a non-exclusive license to Agritope's
proprietary technology of regulating ethylene production in tomato
(hereinafter "SAMase");
Sunseeds will grant to the Company a non-exclusive license to Sunseeds'
proprietary tomato germplasm and associated know-how;
Agritope and Sunseeds will collaborate to develop seed for the Product;
and
A&W will supply the production acreage and distribution infrastructure
for the development and testing of the Product, will arrange for the
growing of the Product and will pack and distribute the Product.
Whereas, the parties recognize that there exist significant risks
associated with the business to be carried on by the Company, including
without limitation: the risk that the Product might not be successfully
developed, or if successfully developed, might not receive regulatory
approval, the risk that the Product might not generate savings, the risk that
the Product might not achieve market acceptance, the risk of crop failure, the
risk associated with the highly volatile tomato market, the credit risk that
growers may not make the payments due from the growers with respect to the
Product, the risk created by the existence of numerous patents held by
different parties in the field of plant genetics and the possibility that
development or marketing of the Product might be impinged by the existence of
any of such patents.
Now, Therefore, in consideration of mutual covenants and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
Article I
Certain Definitions
1.1 Certain Definitions. For purposes of this Agreement, certain
terms used in this Agreement shall be defined as follows:
(a) Accounting Period. An Accounting Period shall be (i) the
Fiscal Year, if there are no changes in the Members' respective interests in
Company income, gain, loss or deductions during such Fiscal Year except on the
first day thereof, or (ii) any other period beginning on the first day of a
Fiscal Year, or any other day during the Fiscal Year upon which occurs a
change in such respective interests, and ending on the last day of a Fiscal
Year, or on the day preceding an earlier day upon which any change in such
respective interest shall occur.
(b) Additional Member. Additional Member shall mean any person
or entity, other than Agritope, Sunseeds or A&W, who or which is admitted to
the Company as a Member pursuant to the terms of this Agreement.
(c) Adjusted Asset Value. Adjusted Asset Value is defined in
Exhibit B to this Agreement.
(d) Affiliate. An Affiliate of a Member is a person or entity
controlling, controlled by, or under common control with, a Member.
(e) Capital Account. The Capital Account of each Member shall
consist of such Member's original capital contribution (i) increased by any
additional capital contribution, such Member's share of Company Income that is
allocated to it pursuant to this Agreement, and the amount of any Company
liabilities that are assumed by such Member or that are secured by any Company
property distributed to such Member, and (ii) decreased by the amount of any
distributions to, or withdrawals by, such Member, such Member's share of any
Company Loss that is allocated pursuant to this Agreement, and the amount of
any liabilities of such Member that are assumed by the Company or that are
secured by any property contributed by such Member to the Company. The
foregoing provision relating to the maintenance of Capital Accounts is
intended to comply with Treasury Regulation Section 1.704-1(b)(2)(iv) and
shall be interpreted and applied in a manner consistent with such Regulations.
Capital contributions may be made in cash or, to the extent agreed to by a
Majority in Interest of the Members, by an in kind contribution of property or
services at the value agreed to by such Members.
(f) Capital Commitment. A Member's Capital Commitment, if any,
shall mean the amount that such Member has agreed to contribute to the capital
of the Company upon such Member's admission to the Company and from time to
time thereafter, as set forth opposite such Member's name on Exhibit A hereto.
(g) Code. The Code, or the Internal Revenue Code, is the
Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
(h) Company Income Or Loss. Company Income or Loss is defined
on Exhibit B to this Agreement.
(i) Company Percentage. The Company Percentage for each Member
shall be as set forth on Exhibit A hereto, as amended from time to time in
accordance with the terms of this Agreement.
(j) Depreciation. Depreciation is defined on Exhibit B to this
Agreement.
(k) Development And Marketing Agreement. Development and
Marketing Agreement means the agreement referred to in the fourth Whereas
clause of the Agreement.
(l) Fiscal Year. The Company's Fiscal Year for the period
between the date hereof and March 1, 1996 shall be such period, and for all
years thereafter shall commence on March 1 of each year and end on February 28
or February 29, as the case may be, of the following year except for the final
Fiscal Year of the Company, which shall begin on March 1 of such final Fiscal
Year and end on the date of termination of the Company.
(m) in interest; Majority In Interest. The term "in interest"
shall mean a specified fraction or percentage of the Company Percentages of
all Members (including the Manager) or of designated Members (including the
Manager if within the class of designated Members). A Majority in Interest
shall mean more than 50% in interest.
(n) Manager. Manager shall mean a Member designated or elected
by the Members as Manager pursuant to the terms of this Agreement. As of the
effective date of this Agreement, Agritope is hereby designated as the Manager
pursuant to Section 18-101(10) of the Delaware Act.
(o) Member. Member shall mean each of the Initial Members and
Additional Members as of a given time.
(p) Members' Council. Members' Council shall mean a council
comprised of three individuals, one of whom is appointed by each Initial
Member, for the purpose of providing advice and counsel on the management of
the Company to the Manager. As of the effective date of this Agreement, the
three members of the Members' Council are Xxxxxx Xxxxx, who is appointed by
Agritope, Xxxxx Xxxxxxxx, who is appointed by Sunseeds, and Xxxx Xxxxxxxxxx,
Sr., who is appointed by A&W, or their respective designees. Each member of
the Members' Council may be removed and replaced at any time by the Member
that appointed such individual.
(q) Officers. Officer shall mean one or more individuals
designated as such by the Manager pursuant to this Agreement.
(r) Treasury Regulations. Treasury Regulations shall mean the
Income Tax Regulations promulgated under the Code, as such Regulations may be
amended from time to time (including corresponding provisions of succeeding
Regulations).
Article II
Name, Purposes And Place Of Business Of Company
2.1 Company Name. The Company shall conduct its activities under the
name Superior Tomato Associates, L.L.C. or such other name as the Manager may
designate.
2.2 Company Purposes. The purpose of the Company is to (i) combine
Sunseeds' tomato seed genetics and know-how with Agritope's SAMase technology
and know-how and A&W's growing, packing and distribution know-how to produce
and commercialize in North American economically superior tomatoes for the
fresh market; the Product shall be fresh market cherry, roma and vine ripened
large fruited tomato varieties using seed developed by the Company,
(ii) engage in any lawful act or activity for which a limited liability
company may be organized under the laws of the State of Delaware and
(iii) engage in all activities necessary, customary, convenient or incident to
any of the foregoing. The Company shall have the power to make and perform
all contracts and to engage in all actions and transactions necessary or
advisable to carry out the purposes of the Company and shall possess all other
powers available to it as a limited liability company under the laws of the
State of Delaware.
2.3 Principal Place Of Business. The principal place of business of
the Company shall be at 0000 XX Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000, or
at such other place or places as the Manager may from time to time determine.
2.4 Registered Agent And Office. The name of the registered agent for
service of process of the Company and the address of the Company's registered
office in the State of Delaware shall be The Xxxxxxxx-Xxxx Corporation
Services, 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or such other agent or
office in the State of Delaware as a Majority in Interest of the Members may
from time to time designate.
Article III
Period Of Duration
3.1 Period Of Duration. The Company's existence commences upon of the
filing with the Secretary of State of the State of Delaware of the Company's
Certificate of Formation and shall continue for a period of thirty (30) years,
unless sooner dissolved as provided in Section 11.1 below.
Article IV
Names, Admission, Rights And Obligations
4.1 Names And Addresses. The names and addresses of the Members, the
amount of their respective Capital Commitments to the Company, if any, and
their respective Company Percentages are set forth on Exhibit A hereto. The
Manager shall cause Exhibit A to be amended from time to time to reflect the
admission of any Additional Member, the withdrawal of any Member, receipt by
the Company of notice of any change of address of a Member, the change in any
Member's Capital Commitment, the change in any Member's Company Percentage, or
the occurrence of any other event requiring amendment of Exhibit A.
4.2 Admission Of Members. Additional Members may be admitted to the
Company upon the written consent of the Manager and with the approval of a
Majority in Interest of the Members.
4.3 Limitation Of Liability. Each Member's liability shall be limited
as set forth in the Delaware Act and other applicable law.
4.4 Company Debt Liability. No Member shall personally be liable for
any debts or losses of the Company beyond such Member's respective Capital
Commitment.
4.5 Restrictions On Transfers Of Company Interests.
(a) Without the written consent of a Majority in Interest of the
non-transferring Members, no Member shall sell, assign, transfer, or otherwise
dispose of such Member's share in the Company.
(b) In the event of any voluntary or involuntary transfer of a
Member's interest in the Company, or any part thereof, the transferee shall
receive only the transferor's economic interest in the Company, and the
transferee shall not be admitted as a Member or have any right as a result of
such transfer to participate in the affairs of the Company, except as provided
by written consent of a Majority in Interest of the non-transferring Members
which consent may be withheld for any reason or for no reason.
4.6 Withdrawal Of Member. A Member may not withdraw or resign without
the consent of a Majority in Interest of the non-resigning or non-withdrawing
Members to such withdrawal and the terms thereof.
Article V
Management, Duties And Restrictions
5.1 Management. Except as otherwise set forth herein, the Manager
shall have the sole right to manage, control, and conduct the affairs of the
Company and to do any and all acts on behalf of the Company, subject to the
provisions of this Agreement which may require the consent of the Members.
5.2 Officers. Subsequent to the date of this Agreement, one or more
Officers may be designated and appointed by the Manager, in consultation with
the members of the Members' Council. The Manager may delegate a portion of
its day-to-day management responsibilities to any such Officers, and such
Officers shall have the authority to execute documents for, contract for,
negotiate on behalf of and otherwise represent, the interests of the Company
as authorized by the Manager in any job description created by the Manager.
Any number of offices may be held by the same person.
5.3 The Members' Council.
(a) The purpose of The Member's Council is to review and advise
concerning the direction and progress of the Company.
(b) Meetings of the Members' Council may be held at any time and
place within or without the State of Delaware whenever called by the Manager
or any Member.
(c) Written notice of the time and place of all meetings of the
Members' Council shall be given by the Manager (or any Member) upon ten (10)
day's notice, unless the Manager, in its sole discretion, determines that a
lesser period of notice is appropriate.
(d) Any member of the Members' Council may participate in a
meeting thereof by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other.
5.4 Resignation Of Manager, Officers And Members Of Members' Council;
Removal of Manager. Any Manager, Officer or member of the Members' Council
may resign at any time by giving written notice to each of the Members. The
Manager may be removed, with or without cause, upon the written direction of a
Majority in Interest of the Members.
5.5 Determination By The Manager. All matters concerning allocations,
distributions and tax elections (except as may otherwise be required by the
income tax laws) and accounting procedures not expressly and specifically
provided for by the terms of this Agreement shall be determined in good faith
by the Manager. Such determination shall be final and conclusive as to all of
the Members.
5.6 Restrictions On The Members. Members other than the Manager shall
not have any power or authority to act for or on behalf of the Company.
5.7 Manager's And Officers' Standard Of Care. In discharging duties,
the Manager or an Officer shall be fully protected in relying in good faith
upon any such records and upon such information, opinions, reports or
statements by any other person, as to matters the Manager or any Officer
reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of
the Company, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits or losses of the Company
or any other facts pertinent to the existence and amount of assets from which
distributions to Members might properly be paid. Unless fraud, deceit or a
wrongful taking shall be proved by a nonappealable court order, judgment,
decree or decision, neither the Manager nor an Officer shall be liable or
obligated to the Members for any mistake of fact or judgment or for the doing
of any act or the failure to do any act by the Manager or any Officer in
conducting the business, operations and affairs of the Company, which may
cause or result in any loss or damage to the Company or its Members. The
Manager or an Officer does not, in any way, guarantee the return of the
Member's Capital Commitment or a profit for the Members from the operations of
the Company. Neither the Manager nor an Officer shall be responsible to any
Member because of a loss of investments or a loss in operations, unless the
loss shall have been the result of fraud, deceit or a wrongful taking by the
Manager or an Officer proved as set forth in this Section 5.7. Neither the
Manager nor an Officer shall incur liability to the Company or to any of the
Members as a result of engaging in any other business or venture.
5.8 No Exclusive Duty To Company. Neither the Manager nor an Officer
shall be required to manage the Company as such party's sole and exclusive
function, and such party and any Member may have other business interests and
may engage in other activities (including, without limitation, activities in
development, production and marketing of tomatoes) in addition to those
relating to the Company. Neither the Company nor any Member shall have any
right, by virtue of this Agreement, to share or participate in such other
investments or activities of the Manager or other Member or to the income or
proceeds derived therefrom.
5.9 Indemnity Of The Manager And Officers.
(a) The Manager (and the directors, officers, employees and
agents of such Manager) or an Officer of the Company (and the heirs,
executors, personal representatives or administrators of such Manager or
Officer) who was or is made a party to, or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a Manager (or a person acting on behalf of such Manager) or an Officer of
the Company ("Indemnitee"), shall be indemnified and held harmless by the
Company to the fullest extent permitted under Section 18-108 of the Delaware
Act, as the same exists or may hereafter be amended. In addition to the
indemnification conferred in this Article, the Indemnitee shall also be
entitled to have paid directly by the Company the expenses reasonably incurred
in defending any such proceeding against such Indemnitee in advance of its
final disposition, to the fullest extent authorized by applicable law, as the
same exists or may hereafter be amended. The right to indemnification
conferred in this Article shall be a contract right.
(b) The rights and authority conferred in this Article shall not
be exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the articles of organization or operating
agreement of the Company, agreement, vote of Members, or otherwise.
(c) Any repeal or amendment of this Article by the Members of
the Company shall not adversely affect any right or protection of a Manager or
Officer existing at the time of such repeal or amendment.
Article VI
Capital Accounts; Capital Commitment
6.1 Capital Accounts. An individual Capital Account shall be
maintained on the Company's books for each Member.
6.2 Initial Capital Contributions.
(a) Agritope and Sunseeds will each make capital contributions
to the Company up to $100,000. Said contributions shall be made in the form
of invoices submitted to the Company by Agritope and Sunseeds with Agritope
and Sunseeds receiving capital account credits for the amount of such invoices
up to $100,000 each. Each invoice shall represent the cost of Agritope or
Sunseeds, as applicable, of performing its assigned work under the Development
and Marketing Agreement as determined based on generally accepted cost
accounting principles, to include: (i) direct labor, payroll and related
costs, including taxes and benefits, (ii) direct material costs, and (iii) an
additional amount, not to exceed 30% of direct labor costs, for indirect costs
(i.e., overhead). Invoices submitted in excess of $100,000 by either Agritope
or Sunseeds shall be paid out of contributions made by A&W to the extent
provided for in subsection (b).
(b) A&W will contribute capital to the Company at the level of
$8,000 per month, with the first contribution due on the signing of this
Agreement, and each subsequent contribution due on the fifteenth day of each
month thereafter (the final contribution being $4,000) up to a total of
$100,000. Invoices submitted in excess of $100,000 by either Agritope or
Sunseeds shall be reimbursed out of cash contributions made by A&W as per the
budget approved by the Members' Council.
6.3 Additional Capital Commitments. Within ten (10) days of a written
notice of the Manager, each Member shall contribute to the Company by wire
transfer or check the amount set forth opposite such Member's name under the
heading "Additional Capital Commitment" on Exhibit A hereto, which amount
shall be credited to each Member's Capital Account. The Manager may give the
notice for the first $100,000 of each Members's Additional Capital Commitment
at any time after January 1, 1997 and may give the notice for the second
$100,000 of each Member's Additional Capital Commitment at any time after
January 1, 1998.
6.4 Noncontributing Members. The Company will be entitled to enforce
the obligations of each Member to make the contributions to capital specified
in Sections 6.2 and 6.3 above, including the obligations of Agritope and
Sunseeds to perform their assigned work under the Development and Marketing
Agreement and submit invoices therefor, and the Company will have all remedies
available at law or in equity in the event any such contribution is not so
made. If any legal proceedings relating to the failure of a Member to make
such a contribution are commenced, such Member shall pay all costs and
expenses incurred by the Company, including attorneys' fees, in connection
with such proceedings, but the payment of such costs and expenses shall not be
treated as a capital contribution to the Company. Without limiting the
foregoing remedies, if a Member fails to make a Capital Contribution within
the time period set forth in Sections 6.2 above, then, at the election of a
Majority in Interest of the other Members, the Company Percentage of the
defaulting Member shall be reduced to zero (0) and the Company Percentages of
the non-defaulting Members shall be increased by an equal amount and in
proportion to their Company Percentages prior to the default. In addition, a
defaulting Member whose Company Percentage has been so reduced to zero (0)
shall no longer be entitled to receive distribution pursuant to this
Agreement, except distribution as provided in Article XI upon dissolution of
the Company.
6.5 Additional Capital Contributions; Right Of First Refusal.
(a) Each Member shall have a right of first refusal to make its
pro rata share of all capital contributions that the Company may, from time to
time, propose to accept after the date of this Agreement from any other
Member, or from a proposed new Member. Each Member's pro rata share of
capital contributions is the Member's Company Percentage immediately prior to
such new capital contribution.
(b) If the Company proposes to accept additional capital
contributions, it shall give each Member written notice of its intention, the
amount of the capital contribution and the Company Percentage that will be
allocated to the contributor(s) in consideration of such capital contribution.
Each other Member shall have twenty (20) days from the giving of such notice
to agree to contribute its pro rata share of such capital contribution upon
the terms and conditions specified in the notice by giving written notice to
the Company and stating therein the amount to be contributed.
(c) If any Member fails to exercise in full the rights of first
refusal within such twenty (20) day period, (i) the Company shall have sixty
(60) days thereafter to accept the capital contributions in respect of which
such Member's rights were not exercised upon terms and conditions no more
favorable to the contributors thereof than specified in the Company's notice
to the Members pursuant to this Section 6.5. If the Company has not accepted
the capital contributions within such sixty (60) days, the Company shall not
thereafter accept any additional capital contributions, without first offering
such interests to the Member in the manner provided above.
6.6 Allocations To New Members. No Additional Member shall be
entitled to any retroactive allocation of losses, income or expense deductions
incurred by the Company. The Manager may, at its option, at the time an
Additional Member is admitted, close the Company books (as though the
Company's tax year had ended) or make pro rata allocations of loss, income and
expense deductions to an Additional Member for that portion of the Company's
tax year in which an Additional Member was admitted, in accordance with the
provisions of Section 706(d) of the Code and the Treasury Regulations
promulgated thereunder.
Article VII
Allocations
7.1 Allocation Of Company Income Or Loss. Subject to the "Qualified
Income Offset" provisions set forth in Exhibit B, Company Income or Loss for
each Accounting Period shall be allocated one hundred percent (100%) to the
Capital Accounts of the Members in proportion to their respective Company
Percentages.
7.2 Income Tax Allocations. Except as otherwise required by the Code
and the rules and Treasury Regulations promulgated thereunder, a Member's
distributive share of Company income, gain, loss, deduction, or credit for
income tax purposes shall be the same as is entered in the Member's Capital
Account pursuant to this Agreement.
Article VIII
Fees And Expenses
8.1 Management Compensation. The Manager shall be entitled to
compensation on the basis of its reasonable costs for all management services
it provides to the Company as Manager, as approved by a Majority in Interest
of the Members.
Article IX
Distributions To And Withdrawals By Members
9.1 Interest. No interest shall be paid to any Member on account of
its interest in, or Capital Commitment to, the Company.
9.2 Withdrawals By Members. Except as provided herein, no Member may
withdraw any amount from the Company without the consent of all of the other
Members, except upon dissolution of the Company.
9.3 Distributions. At the end of each Fiscal Year, each Member shall
promptly (and in no event later than ninety (90) days after the end of each
Fiscal Year) be paid in cash, fifty percent (50%) of the Company's taxable
income allocable to such Member for the Fiscal Year then ended; provided,
however, the foregoing percentage can be changed by the Manager with the
consent of a Majority in Interest of the Members. In addition to the
foregoing distributions, the Company may ratably distribute cash, securities
and other assets to each of the Members at such times and on such terms and
conditions as the Manager shall deem appropriate if the Manager determines
that such assets are not needed for use (or retained for reasonable reserves)
in the business of the Company. Any such distributions shall be distributed
to the Members pro rata in accordance with Company Percentages, but in no
event shall exceed the cumulative undistributed net income from operations. A
Member's right to participate in distributions under this Section 9.3 shall be
restricted to the extent provided for in Sections 6.4 and 6.5(c).
9.4 Members' Obligation To Repay Or Restore. Except as required by
law, no Member shall be obligated at any time to repay or restore to the
Company all or any part of any distribution made to it from the Company in
accordance with the terms of this Article IX.
Article X
Protective Rights
10.1 Approval By Members. The following will require approval by two-
thirds in interest of the Members.
(a) Any amendment of the Certificate of Formation of the Company
or this Agreement;
(b) The filling of a vacancy in the position of the Manager;
(c) Admission of a new Member;
(d) Approval of the budget on an annual basis, and any
modification to the budget;
(e) Any agreement committing the Company to an obligation in
excess of $10,000;
(f) Any single expenditure or related expenditures in excess of
$5,000;
(g) Creation of any lien or encumbrance on the assets of the
Company;
(h) An alteration of the primary purpose of the Company;
(i) A vote to dissolve the Company;
(j) The sale, exchange or other disposition of all, or
substantially all, of the Company's assets as part of a single transaction or
plan;
(k) The merger of the Company with another limited liability
company, a limited partnership, a general partnership or other entity;
(l) Determination of transfer prices or royalties to be paid to
the Company; and
(m) Approval of growers.
10.2 Approval By Other Members.
(a) A transaction between the Company and any Member, or any
party related to that Member, will require approval of a Majority in Interest
of other Members; and
(b) A decision to compromise the obligation of a Member to
return money or property paid or distributed unlawfully will require approval
of a Majority in Interest of other Members.
Article XI
Dissolution Of Company
11.1 Early Termination Of The Company. The Company shall dissolve and
the affairs of the Company shall be wound up prior to the term provided in
Section 3.1
(a) one hundred eighty (180) days following the death,
dissolution, insanity, retirement, resignation, bankruptcy or expulsion of any
Member or the occurrence of any other event which terminates the continued
membership of a Member, unless two-thirds in interest of the remaining
Members, within ninety (90) days of such event, agree to continue the Company;
(b) upon the vote or written consent of all the Members; or
(c) upon the entry of a decree of judicial dissolution under
Section 18-802 of the Delaware Act;
11.2 Dissolution Procedures. Upon dissolution of the Company at the
expiration of the Company term or as set forth in Section 11.1:
(a) The affairs of the Company shall be wound up and terminated
under the direction of the Manager or the remaining Members in event of the
withdrawal of the Manager. All matters relating to the dissolution and
liquidation of the Company shall be determined by the Manager, or the
remaining Members, as the case may be.
(b) The proceeds of liquidation shall be distributed by the
Company in payment of its liabilities in the following order:
(i) to creditors, other than Members, in the order of
priority established by law;
(ii) to Members in repayment of loans made to the Company;
and
(iii) to all the Members in accordance with the positive
balances in their Capital Accounts and if any Member's Capital Account has a
deficit balance such Member shall not be required to contribute capital to the
Company with respect to such deficit balance.
Article XII
Reports And Financial Accounting
12.1 Financial Records. The books of the Company shall be kept in
accordance with the terms of this Agreement and otherwise in accordance with
generally accepted accounting principles. The records and books of account of
the Company shall be kept at the principal place of business of the Company.
12.2 Annual Reports.
(a) The Company shall transmit to each Member and to each person
(or such Member's or person's legal representative) who was a Member during
any part of the Fiscal Year in question within ninety (90) days after the end
of each Fiscal Year of the Company the following: (1) a balance sheet for the
Company as of the close of the Fiscal Year and a profit and loss statement for
the Fiscal Year then ended, all in reasonable detail; and (2) a report setting
forth the Capital Accounts of each Member and a description of the manner of
their calculation.
(b) The Company shall also transmit within such ninety (90) day
period to each Member then a member of the Company and to each person (or such
Member's or person's legal representative) who was a Member during any part of
the Fiscal Year in question a Schedule K-1 showing such Member's taxable
income from the Company for such Fiscal Year.
(c) The Manager will be responsible to prepare such reports, at
the expense of the Company.
12.3 Tax Matters Member. The Manager shall be the Company's tax
matters member under the Code and under any comparable provision of state law
(the "Tax Matters Member"). A Majority in Interest of the Members may remove,
with or without cause, the Tax Matters Member, and may appoint a new Tax
Matters Member. The Tax Matters Member shall have the same rights and
obligations as the Manager pursuant to Sections 5.7, 5.8 and 5.9 hereof.
12.4 Inspection. Each Member will have the right, at its own expense,
to inspect the books and records of the Company during reasonable business
hours at any time, provided that inspections in excess of once per fiscal year
will be at the inspecting Member's expense.
12.5 Audit. The Manager will arrange, at the Company's expense, for an
audit of the books of the Company as a Majority in Interest of the Members
shall instruct the Manager in writing, and with such accounting firm as a
Majority in Interest of the Members shall approve in writing.
Article XIII
Amendment
13.1 Amendment. This Agreement may be amended by two-thirds in
interest of the Members, provided that, except as provided in Section 6.3
(1) any reduction of a Member's Company Percentage, except in connection with
the contribution of additional capital by one or more Members or addition of a
new Member, (2) any increase in the Capital Commitment of any Member or other
increase in the liabilities, duties, obligations or responsibility of any
member, (3) any modification to the allocation provisions of this Agreement or
(4) any reduction of a Member's Capital Account may only be made with the
consent of such Member.
Article XIV
Other Provisions
14.1 Loans. Subject to Section 10.2 of this Agreement, Members may
make loans to the Company upon such terms and conditions as the Manager may
prescribe.
14.2 Notice. All notices given hereunder shall be in writing. Any
notice herein required to be given to the Company by any of the Members shall
be deemed to have been given when delivered by hand or upon transmission by
telefax or receipt by U.S. Mail or upon confirmed delivery by commercial air
courier at the address set forth in Section 2.3. Any written notice herein
required to be given to a Member shall be deemed to have been given when
delivered by hand or upon transmission by telefax or receipt by U.S. mail or
upon confirmed delivery by commercial air courier at such Member's address set
forth on the signature page hereof, or such other address as may subsequently
be recorded in the records of the Company.
14.3 Counterparts. This Agreement may be executed in more than one
counterpart with the same effect as if the Members executing the several
counterparts had all executed one counterpart.
14.4 Binding Agreement. This Agreement shall be binding on the
assignees and legal successors of the Members.
14.5 Entire Agreement; Captions. This Agreement constitutes the entire
agreement of the parties and supersedes all prior written and verbal
agreements among the Members with respect to the Company. Descriptive titles
are used herein for convenience only and shall not be considered in the
interpretation of this Agreement.
14.6 Governing Law. This Agreement, and the application and
interpretation hereof, shall be governed exclusively by the terms of the
Delaware Limited Liability Company Act.
14.7 Waiver Of Action For Partition. Each Member irrevocably waives
during the term of the Company any right that it may have to maintain any
action for partition with respect to the property of the Company.
14.8 Execution Of Additional Instruments. Each Member hereby agrees to
execute such other and further statements of interest and holdings,
designations, powers of attorney and other instruments necessary to comply
with any laws, rules or regulations.
14.9 Waivers. The failure of any party to seek redress for violation
of or to insist upon the strict performance of any covenant or condition of
this Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation.
14.10 Rights And Remedies Cumulative. The rights and remedies provided
by this Agreement are cumulative, and the use of any one right or remedy by
any party shall not preclude or waive the right to use any or all other
remedies. Such rights and remedies are given in addition to any other rights
the parties may have by law, statute, ordinance or otherwise.
14.11 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement and the
application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law.
14.12 Heirs, Successors And Assigns. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by the
Agreement, their respective heirs, legal representatives, successors and
assigns.
14.13 Creditors. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditor of the Company.
In Witness Whereof, the parties hereto have executed this Agreement as
of the date first above written.
Members:
Agritope, Inc.
By: Xxxxxx X. Xxxxx
Title: President/CEO
Address: 0000 XX Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Sunseeds Company
By: Xxxxx Xxxxxxxx
Title: President/CEO
Address: 00000 Xxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attn: Chief Executive Officer
Xxxxxx and Xxxxxxxxxx Sales Company, Inc.
By: Xxxx Xxxxxxxxxx
Title: President/CEO
Address: 0000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Chief Executive Officer
Exhibit A
SCHEDULE OF MEMBERS
Name Initial Additional
and Capital Capital Company
Address Contribution Commitment Percentage
Agritope, Inc. $100,000 $200,000 33 1/3%
Sunseeds Company $100,000 $200,000 33 1/3%
Xxxxxx and Xxxxxxxxxx $100,000 $200,000 33 1/3%
Total $300,000 $600,000 100%
* Exclusive of initial capital contribution
Exhibit B
CERTAIN DEFINITIONS AND ALLOCATION PROVISIONS
Adjusted Asset Value. The Adjusted Asset Value with respect to any
Company asset shall be the asset's adjusted basis for federal income tax
purposes, except as follows:
(i) The initial Adjusted Asset Value of any asset contributed by a
Member to the Company shall be the gross fair market value of such asset at
the time of contribution, as determined by the contributing Member and the
Company.
(ii) In the discretion of the Manager, the Adjusted Asset Values of all
Company assets may be adjusted to equal their respective gross fair market
values and the resulting unrecognized Company Income or Loss allocated to the
Capital Accounts of the Members, as of the following times: (i) the
acquisition of an additional interest in the Company by any new or existing
Member in exchange for more than a de minimis capital contribution; and (ii)
the distribution by the Company to a Member of more than a de minimis amount
of Company assets, unless all Members receive simultaneous distributions of
either undivided interests in the distributed property or identical Company
assets in proportion to their interests in Company distributions as provided
in Sections 9.3 and 11.2.
(iii) The Adjusted Asset Values of all Company assets shall be adjusted
to equal their respective gross fair market values and the resulting
unrecognized Company Income or Loss allocated to the Capital Accounts of the
Members, as of the following times: (i) the termination of the Company for
federal income tax purposes pursuant to Code Section 708(b)(1)(B); and (ii)
the termination of the Company, either by expiration of the Company's term or
in accordance with Section 10.1.
Company Income or Loss. Company Income or Loss shall be an amount
computed for each Accounting Period as of the last day thereof that is equal
to the Company's taxable income or loss for such Accounting Period, determined
in accordance with Section 703(a) of the Code (for this purpose, all items of
income, gain, loss, or deduction required to be stated separately pursuant to
Code Section 703(a)(1) of the Code shall be included in taxable income or
loss), with the following adjustments:
(i) Any income of the Company that is exempt from federal income tax
and not otherwise taken into account in computing Company Income or Loss
pursuant to this paragraph shall be added to such taxable income or loss;
(ii) Any expenditures of the Company described in Section 705(a)(2)(B)
of the Code or treated as Section 705(a)(2)(B) of the Code expenditures
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(i) and not otherwise
taken into account in computing Company Income or Loss pursuant to this
paragraph shall be subtracted from such taxable income or loss.
(iii) In the event the Adjusted Asset Value of any Company asset is
adjusted to clause (ii) or (iii) of this definition of Adjusted Asset Value,
the amount of such adjustment shall be taken into account as gain or loss from
the disposition of such asset for purposes of computing Company Income or
Loss.
(iv) Gain or loss resulting from any disposition property with respect
to which gain or loss is recognized for federal income tax purposes shall be
computed by reference to the Adjusted Asset Value of the property disposed of;
and
(v) In lieu of the depreciation, amortization, and other cost recovery
deductions taken into account in computing such taxable income or loss, there
shall be taken into account Depreciation for such Accounting Period.
Depreciation. Depreciation means, for each Accounting Period, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset for such Accounting Period, except that if
the Adjusted Asset Value of an asset differs from its adjusted basis for
federal income tax purposes at the beginning of such Accounting Period,
Depreciation shall be an amount which bears the same ratio to such beginning
Adjusted Asset Value as the federal income tax depreciation, amortization, or
other cost recovery deduction for such Accounting Period bears to such
beginning adjusted tax basis; provided, however, that if the adjusted basis
for federal income tax purposes of an asset at the beginning of such
Accounting Period is zero, Depreciation shall be determined with reference to
such beginning Adjusted Asset Value using any reasonable method selected by
the Manager.
Qualified Income Offset. The allocations provided for in Article VII
shall be subject to the following exceptions:
(i) Any loss or expense otherwise allocable to a Member that exceeds
the balance in such Member's Capital Account shall instead be allocated first
to all Members who have positive balances in their Capital Accounts in
proportion to such positive balances, and when all Members' Capital Accounts
have been reduced to zero (0), then to all Members in proportion to Company
Percentages.
(ii) In the event any Member unexpectedly receives any adjustments,
allocations, or distributions described in Treasury Regulation Section 1.704-
1(b)(2)(ii)(d)(4) through (d)(6), that causes the balance in such Member's
Capital Account to be reduced below zero (0), items of Company income and gain
shall be specially allocated to such Member in an amount and manner sufficient
to eliminate the deficit balance in its Capital Account created by such
adjustments, allocations, or distributions as quickly as possible.
(iii) For purposes of the foregoing, the balance in a Member's Capital
Account shall take into account the adjustments provided in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d)(4) through (d)(6).
(iv) Any special allocations of items of profit, income, gain, loss or
expense pursuant to subparagraphs (i) and (ii) shall be taken into account in
computing subsequent allocations, so that the net amount of any items so
allocated and the profit, gain, loss, income, expense, and all other items
allocated to each Member shall, to the extent possible, be equal to the net
amount that would have been allocated to each such Member if such special
allocations pursuant to subparagraphs (i) and (ii) had not occurred.
INDEX OF DEFINITIONS
Defined Term Page
Accounting Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Member. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Adjusted Asset Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Capital Account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capital Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Company Income Or Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Delaware Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depreciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Development And Marketing Agreement. . . . . . . . . . . . . . . . . . . . . 3
Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
In Interest; Majority In Interest. . . . . . . . . . . . . . . . . . . . . . 3
Indemnitee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Initial Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Internal Revenue Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Manager. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Members' Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tax Matters Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Treasury Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
