Exhibit 10.2
EXECUTION VERSION
LLC INTEREST PURCHASE AGREEMENT
This LLC Interest Purchase Agreement (Agreement) is made as of November 20, 2009, by Illinois Corn Processing Holdings LLC, a Delaware limited liability company (Buyer), and MGP Ingredients, Inc., a Kansas corporation (Seller).
RECITALS
Seller desires to sell, and Buyer desires to purchase, 50% (the Purchased Interest) of the issued and outstanding limited liability company interest of Illinois Corn Processing, LLC, a Delaware limited liability company (the Company), for the consideration and on the terms set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
For purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1:
Additional Capital Investmentall additional equity capital contributions and total capital expenditures made by each of Buyer and Seller pursuant to the LLC Agreement.
Applicable Contractany Contract (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound.
Breacha Breach of a representation, warranty, covenant, obligation, or other provision of this Agreement or any instrument delivered pursuant to this Agreement will be deemed to have occurred if there is or has been (a) any inaccuracy in or breach of, or any failure to perform or comply with, such representation, warranty, covenant, obligation, or other provision, or (b) any claim (by any Person) or other occurrence or circumstance that is or was inconsistent with such representation, warranty, covenant, obligation, or other provision, and the term Breach means any such inaccuracy, breach, failure, claim, occurrence, or circumstance.
Business the business operations, activities, Plant assets and practices associated with the production of fuel ethanol, food grade and industrial grade alcohol and associated by-products at the Plant.
Buyeras defined in the first paragraph of this Agreement.
Buyer Indemnified Persons as defined in Section 10.2.
Cleanup any environmental investigation, cleanup, removal, response, remedial action, corrective action, containment, monitoring, sampling, testing or other remediation or response actions, including related consulting activities. The terms removal, remedial, and response action, include the types of activities covered by the United States Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (CERCLA), the Resource Conservation and Recovery Act, 42 U.S.C. Section 6973 et seq. (RCRA), or applicable and analogous state statutes, as each has been amended.
Closing the consummation of the transactions contemplated by this Agreement, as provided in Section 2.3.
Closing Datethe date of this Agreement, or such other date as may be agreed by the parties.
Companyas defined in the Recitals of this Agreement.
Consentany approval, consent, ratification, waiver, or other authorization (including any Governmental Authorization).
Contemplated Transactionsall of the transactions contemplated by this Agreement, including:
Contractany agreement, contract, obligation, promise, or undertaking (whether written or oral and whether express or implied) that is legally binding.
Contribution the contribution of assets made by the Seller to the Company pursuant to the Contribution Agreement.
Contribution Agreement that certain Contribution Agreement dated this date between Seller and the Company whereby Seller contributed the Plant and related assets to the Company immediately prior to the Closing under this Agreement.
Damagesas defined in Section 10.2.
Disclosure Letterthe disclosure letter delivered by Seller to Buyer concurrently with the execution and delivery of this Agreement.
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Encumbranceany charge, claim, community property interest, condition, equitable interest, lien, option, pledge, security interest, right of first refusal, security interest, mortgage, indenture, deed of trust, easement, assessment, lease, agreement, license, covenant, levy, or other encumbrance or restriction of any kind, or any conditional sale agreement, title retention agreement or other agreement to give any of the foregoing, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.
Environmentsoil, land surface or subsurface strata, surface waters (including navigable waters, ocean waters, streams, ponds, drainage basins, and wetlands), groundwaters, drinking water supply, stream sediments, ambient air (including indoor air), plant and animal life, and any other environmental medium or natural resource.
Environmental, Health, and Safety Liabilitiesany costs, damages, expenses, liabilities, obligations, fines, penalties, judgments, awards, settlements, claims, demands, in or other responsibility arising from or under Environmental Law or Occupational Safety and Health Law and consisting of or relating to:
Environmental Lawany Legal Requirement that requires or relates to:
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ERISAthe Employee Retirement Income Security Act of 1974 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.
Ethanol Off-Take Agreementthat certain Marketing Agreement dated the Closing Date between the Company and SEACOR Energy Inc., an affiliate of Buyer, with respect to ethanol produced at the Plant.
Excluded Equipmentthe equipment located in the wheat starch and wheat protein plant that is part of the facilities at the Plant, which shall remain the sole property of MGPI.
Food Grade Alcohol Off-Take Agreementthat certain Marketing Agreement dated the Closing Date between the Company and Seller with respect to food-grade and industrial-grade alcohol produced at the Plant.
Governmental Authorizationany approval, consent, license, permit, waiver, or other authorization issued, granted, given, or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement.
Governmental Bodyany:
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Hazardous Activitythe distribution, generation, handling, importing, management, manufacturing, processing, production, refinement, Release, storage, transfer, transportation, treatment, or use (including any withdrawal or other use of groundwater) of Hazardous Materials in, on, under, about, or from the Plant or any part thereof into the Environment, and any other act, business, operation, or thing that increases the danger, or risk of danger, or poses a risk of harm to persons or property on or off the Plant, or that may affect the value of the Plant or the Company.
Hazardous Materialsany waste or other substance that is listed, defined, designated, or classified as, or otherwise determined to be, hazardous, radioactive, or toxic or a pollutant or a contaminant under or pursuant to any Environmental Law, including any admixture or solution thereof, and specifically including petroleum and all derivatives thereof or synthetic substitutes therefor, and asbestos or asbestos-containing materials.
Indemnified Partyas defined in Section 10.8(a).
Indemnifying Partyas defined in Section 10.8(a).
Intellectual Property all intellectual property, including all:
(a) patents, applications for patents, and rights to apply for patents in any part of the world;
(b) copyrights, design rights, topography rights, Internet domain name registrations, and database rights whether registered or unregistered;
(c) trademark and service mark applications, registered trademarks and service marks, registered designations of origin, registered designations of geographic origin, refilings, renewals and reissues of the foregoing, unregistered trademarks and service marks, including common law trademarks and service marks, rights to trade dress and company names, in each case with any and all associated goodwill; and
(d) all rights in respect of any Know How.
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IRCthe Internal Revenue Code of 1986 or any successor law, and regulations issued by the IRS pursuant to the Internal Revenue Code or any successor law.
IRSthe United States Internal Revenue Service or any successor agency, and, to the extent relevant, the United States Department of the Treasury.
Knowledgean individual will be deemed to have Knowledge of a particular fact or other matter if such individual is actually aware of such fact or other matter. A Person (other than an individual) will be deemed to have Knowledge of a particular fact or other matter if any individual who is serving as the President, Chief Financial Officer or Chief Operating Officer of such Person (or in any similar capacity) has, or at any time had, Knowledge of such fact or other matter.
Know How trade secrets and confidential business information including details of supply arrangements, customer lists and pricing policy; sales targets, sales statistics, market share statistics, marketing surveys and reports; unpatented technical and other information that is not publicly available including inventions, discoveries, processes and procedures, ideas, concepts, formulae, notebooks, specifications, procedures for experiments and tests and results of experimentation and testing; information comprised in software and materials; together with all common law or statutory rights protecting the same and any similar or analogous rights to any of the foregoing whether arising or granted under any Laws.
Known Environmental Conditionany Hazardous Activity or Release of Hazardous Materials actually or constructively known by any current or former officer, director, employee or agent of Seller at the time of Closing, or referenced in any documents maintained by or provided to Seller or any Governmental Body, including, but not limited to those documents posted in the electronic data room created in connection with the transaction contemplated by this Agreement and the Enercon Phase I and II Environmental Site Assessments, each dated November 18, 2009.
Law any statute, law, ordinance, decree, order, injunction, rule, directive, or regulation of any Governmental Body or quasi-governmental authority, and includes rules and regulations of any regulatory or self-regulatory authority compliance with which is required by any of the foregoing.
Legal Requirementany federal, state, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty.
LLC Agreementthat certain Limited Liability Company Agreement of the Company dated the Closing Date between Buyer and Seller.
Loan Agreements collectively, (i) the Term Loan Agreement and (ii) until refinancing with a third party, the Revolving Loan Agreement.
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Loan Documents the Loan Agreements and each note, mortgage, security agreement, instrument, agreement and certificate delivered to the lender pursuant to the Loan Agreements.
Occupational Safety and Health Lawany Legal Requirement designed to provide safe and healthful working conditions and to reduce occupational safety and health hazards, and any program, whether governmental or private (including those promulgated or sponsored by industry associations and insurance companies), designed to provide safe and healthful working conditions.
Orderany award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any court, administrative agency, or other Governmental Body or by any arbitrator.
Organizational Documents(a) the articles or certificate of formation and the limited liability company agreement or operating agreement of a limited liability company; (b) the articles or certificate of incorporation and the bylaws of a corporation; (c) the partnership agreement and any statement of partnership of a general partnership; (d) the limited partnership agreement and the certificate of limited partnership of a limited partnership; (e) any charter or similar document adopted or filed in connection with the creation, formation, or organization of a Person; and (f) any amendment to any of the foregoing.
Permitted Encumbrances(i) any liens for current taxes and, to the extent set forth in Part 3.4(B) of the Disclosure Letter, special assessments, if any, not yet due; (ii) existing Encumbrances that are set forth in Part 3.4(B) of the Disclosure Letter; (iii) minor imperfections of title, if any, none of which is substantial in amount, materially detracts from the value or impairs the use of the property subject thereto, or impairs the operations of the Company, and (iv) zoning laws and other land use restrictions that do not impair the present use of the property subject thereto.
Personany individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or Governmental Body.
Plant the alcohol production facility acquired by the Company from Seller located at 1301 S. Front Street, Pekin, Illinois 61554 (as more particularly described on the attached Exhibit A), including all related real estate, improvements, equipment and other real and personal property at such location, other than the Excluded Equipment.
Proceedingany action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.
Purchased Interestas defined in the Recitals of this Agreement.
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Reasonable Effortsthe efforts that a prudent Person desirous of achieving a result would use in similar circumstances to ensure that such result is achieved as expeditiously as possible; provided, however, that an obligation to use Reasonable Efforts under this Agreement does not require the Person subject to that obligation to take actions that would result in a materially adverse change in the benefits to such Person of this Agreement and the Contemplated Transactions.
Related Personwith respect to a particular individual:
With respect to a specified Person other than an individual:
For purposes of this definition, (a) the Family of an individual includes (i) the individual, (ii) the individuals spouse, (iii) any other natural person who is related to the individual or the individuals spouse within the second degree, and (iv) any other natural person who resides with such individual, and (b) Material Interest means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of voting securities or other voting interests representing at least 10% of the outstanding voting power of a Person or equity securities or other equity
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interests representing at least 10% of the outstanding equity securities or equity interests in a Person.
Releaseany spilling, leaking, emitting, discharging, depositing, escaping, leaching, dumping, or other releasing into the Environment, whether intentional or unintentional.
Representativewith respect to a particular Person, any director, officer, employee, agent, consultant, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.
Revolving Loan Agreementthat certain Revolving Loan and Security Agreement dated the Closing Date between SEACOR Capital Corporation (an affiliate of Buyer), as lender, and the Company, as borrower, whereby SEACOR Capital Corporation is providing up to $20 million in revolving credit facility financing secured by substantially all of the Companys assets.
Securities Actthe Securities Act of 1933 or any successor law, and regulations and rules issued pursuant to that Act or any successor law.
Selleras defined in the first paragraph of this Agreement.
Subsidiarywith respect to any Person (the Owner), any corporation or other Person of which securities or other interests having the power to elect a majority of that corporations or other Persons board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (other than securities or other interests having such power only upon the happening of a contingency that has not occurred) are held by the Owner or one or more of its Subsidiaries.
Tax or Taxes (i) any and all federal, state, provincial, local, municipal and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities of any kind, including taxes or other charges based upon or measured by gross receipts, income, profits, sales, capital, use and occupation, admission, entertainment and value added, goods and services, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, personal property, excise, duty, customs, Pension Benefit Guaranty Corporation premiums and real estate taxes, together, in each case, with all interest, penalties and additions imposed with respect to such amounts; (ii) any liability for the payment of any amounts of the type described in clause (i) as a result of being a member of an affiliated, consolidated, combined or unitary group for any period; and (iii) any liability for the payments of the amounts of the types described in clause (i) or (ii) as a result of being a transferee of, or a successor in interest to, any Person or as a result of an express or implied obligation to indemnify any Person (other than an indemnification obligation arising under this Agreement).
Tax Returnany return (including any information return), report, statement, schedule, notice, form, or other document or information filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the
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determination, assessment, collection, or payment of any Tax, including Taxes payable by, pursuant to or in connection with employee benefit plans or in connection with the administration, implementation, or enforcement of or compliance with any Legal Requirement relating to any Tax.
Term Loan Agreementthat certain Term Loan and Security Agreement dated the Closing Date between SEACOR Capital Corporation, as lender, and the Company, as borrower, whereby SEACOR Capital Corporation is providing $10 million in term loan financing secured by substantially all of the Companys assets.
Threat of Releasea substantial likelihood of a Release that may require action in order to prevent or mitigate damage to the Environment that may result from such Release.
Third Personas defined in Section 10.8(b).
Third Person Claimas defined in Section 10.8(b).
Threateneda claim, Proceeding, dispute, action, or other matter will be deemed to have been Threatened if any demand or statement has been made (orally or in writing) or any notice has been given (orally or in writing), or if any other event has occurred or any other circumstances exist, that would lead a prudent Person to conclude that such a claim, Proceeding, dispute, action, or other matter is likely to be asserted, commenced, taken, or otherwise pursued in the future.
Transaction Taxesas defined in Section 2.4(d).
Unknown Environmental Condition any Hazardous Activity or Release of Hazardous Materials which is not a Known Environmental Condition and which originated (in whole or in part) at any time prior to Closing.
Subject to the terms and conditions of this Agreement, at the Closing, Seller will sell, assign, convey and transfer the Purchased Interest to Buyer, and Buyer will purchase, acquire, and accept from Seller all of Sellers right, title and interest in and to the Purchased Interest.
The consideration that Buyer will pay to Seller for the Purchased Interest will be Fifteen Million Dollars ($15,000,000) (the Purchase Price), payable in immediately available funds at the Closing.
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The Closing will take place at the offices of the Company at 1301 S. Front Street, Pekin, Illinois 61554, at 10:00 a.m. Central Time on the Closing Date. Subject to the provisions of Section 9, failure to effectuate the Closing on the date and time and at the place determined pursuant to this Section will not result in the termination of this Agreement and will not relieve any party of any obligation under this Agreement.
At the Closing:
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Between the second and fifth anniversaries of the Closing Date, Buyer may give Seller written notice of its election to purchase for cash additional Interests (as defined in the LLC Agreement) from Seller up to an aggregate of 20% of all issued and outstanding Interests. The purchase price payable for such Interests shall be the percentage of such Interests multiplied by the greater of (i) four times the immediately proceeding twelve months EBITDA of the Company or (ii) $40 million, adjusted for pro-rata Additional Capital Investment.
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Seller represents and warrants to Buyer as follows:
The Company is a limited liability company duly organized, validly existing, and in good standing under the laws of Delaware, with all requisite entity power and authority to conduct the Business, to own or use the properties and assets that it purports to own or use, and to perform all its obligations under Applicable Contracts. The Company is duly qualified to do business as a foreign limited liability company and is in good standing under the laws of Illinois, the only jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification.
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(d) Except as set forth in Part 3.2 of the Disclosure Letter, neither Seller nor the Company is or will be required to give any notice to or obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the Contemplated Transactions.
Seller is and will be on the Closing Date the record and beneficial sole owner and holder of the Purchased Interest, free and clear of all Encumbrances. With the exception of the Purchased Interest and the 50% of limited liability company interest retained by Seller, there are no other outstanding limited liability company interests issued and outstanding of the Company. Except for the Companys existing Limited Liability Company Agreement dated October 5, 2009 and the Contribution Agreement, there are no Contracts relating to the issuance, sale, or transfer of any equity securities or other securities of the Company.
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The buildings, plants, structures and equipment of the Plant were structurally sound and in good operating condition and repair at the time the Plant was shutdown in February 2009, ordinary wear and tear excepted. The buildings, plants, structures and equipment of the Plant are structurally sound and in good operating condition and repair in light of the current Plant shutdown. The building, plants, structures and equipment of the Company are sufficient for the conduct of the Business after the Closing in the manner contemplated by the LLC Agreement.
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The Company is a newly-formed entity that has no Contracts or other obligations with respect to the Plant, except as created or specifically incurred in connection with the Contemplated Transactions or as described in the last sentence of Section 3.3.
Except as set forth in Part 3.10 of the Disclosure Letter:
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Except as set forth on Part 3.12 of the Disclosure Letter, since January 1, 2008 neither Seller nor the Company has been or is a party to any collective bargaining or other labor Contract nor is the Company a successor to any such Contract or any other labor obligation or liability required by Law or otherwise. Except as set forth on Part 3.12 of the Disclosure Letter, since January 1, 2008, there has not been, and there is not presently pending or existing, (a) any strike, slowdown, picketing, work stoppage, or employee grievance process, (b) any Proceeding against or affecting the Company relating to the alleged violation of any Legal Requirement pertaining to labor relations or employment matters, including any charge or complaint filed by an employee or union with the National Labor Relations Board, the Equal Employment Opportunity Commission, federal Department of Labor (wage and hour), Office of Federal Contract Compliance Programs (affirmative action/equal opportunity), or any comparable
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Governmental Body, organizational activity, or other labor or employment dispute against or affecting any of the Company or their premises, or (c) any application for certification of a collective bargaining agent. The Company is not liable for the payment of any compensation, damages, taxes, fines, penalties, or other amounts, however designated, for failure to comply with any Legal Requirements related to employment matters.
Except for the fees of BMO Capital to be paid by Seller, Seller has not incurred any obligation or liability, contingent or otherwise, for brokerage or finders fees or agents commissions or other similar payment in connection with this Agreement.
Buyer represents and warrants to Seller as follows:
Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware.
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Buyer is not and will not be required to obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the Contemplated Transactions.
Buyer is acquiring the Purchased Interest for its own account and not with a view to their distribution within the meaning of Section 2(11) of the Securities Act.
There is no pending Proceeding that has been commenced against Buyer and that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions. To Buyers Knowledge, no such Proceeding has been Threatened.
Buyer and its officers and agents have incurred no obligation or liability, contingent or otherwise, for brokerage or finders fees or agents commissions or other similar payment in connection with this Agreement and will indemnify and hold Seller harmless from any such payment alleged to be due by or through Buyer as a result of the action of Buyer or its officers or agents.
Buyers obligation to purchase the Purchased Interest and to take the other actions required to be taken by Buyer at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Buyer, in whole or in part):
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All of Sellers representations and warranties in this Agreement (considered collectively), and each of these representations and warranties (considered individually), must have been true, accurate and complete as of the date hereof, and must be accurate in all material respects as of the Closing Date as if made on the Closing Date.
Each of the Consents identified in Part 3.2 of the Disclosure Letter must have been obtained and must be in full force and effect.
Since the date of this Agreement, there must not have been commenced or Threatened any Proceeding (a) involving any challenge to, or seeking damages or other relief in connection with, any of the Contemplated Transactions, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the Contemplated Transactions.
There must not have been made or Threatened by any Person any claim asserting that such Person (a) is the holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any membership interest in, or any other voting, equity, or ownership interest in, the Company, or (b) is entitled to all or any portion of the Purchase Price payable for the Purchased Interest.
Neither the consummation nor the performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time), materially contravene, or conflict with, or result in a material violation of, or cause Buyer or any Person affiliated with Buyer to suffer any material adverse consequence under, (a) any applicable Legal Requirement or Order, or (b) any Legal Requirement or Order that
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has been published, introduced, or otherwise formally proposed by or before any Governmental Body.
Sellers obligation to sell the Purchased Interest and to take the other actions required to be taken by Seller at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Seller, in whole or in part):
All of Buyers representations and warranties in this Agreement (considered collectively), and each of these representations and warranties (considered individually), must have been true, accurate and complete as of the date hereof and must be accurate in all material respects as of the Closing Date as if made on the Closing Date.
Each of the Consents identified in Part 3.2 of the Disclosure Letter must have been obtained and must be in full force and effect.
Since the date of this Agreement, there must not have been commenced or Threatened against Seller, or against any Person affiliated with Seller, any Proceeding (a) involving any challenge to, or seeking damages or other relief in connection with, any of the Contemplated Transactions, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the Contemplated Transactions.
Neither the consummation nor the performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time), materially contravene, or conflict with, or result in a material violation of, or cause Seller or any Person affiliated with Seller to suffer any material adverse consequence under, (a) any applicable Legal Requirement or Order, or (b) any Legal Requirement or Order that
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has been published, introduced, or otherwise formally proposed by or before any Governmental Body.
This Agreement may, by notice given prior to or at the Closing, be terminated:
Each partys right of termination under Section 9.1 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of a right of termination will not be an election of remedies. If this Agreement is terminated pursuant to Section 9.1, all further obligations of the parties under this Agreement will terminate, except that the obligations in Sections 11.1 (Expenses) and 11.3 (Confidentiality) will survive; provided, however, that if this Agreement is terminated by a party because of the Breach of the Agreement by the other party or because one or more of the conditions to the terminating partys obligations under this Agreement is not satisfied as a result of the other partys failure to comply with its obligations under this Agreement, the terminating partys right to pursue indemnification under Article 10 and all other legal remedies will survive such termination unimpaired.
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All representations, warranties, covenants, and obligations in this Agreement, the Disclosure Letter, the supplements to the Disclosure Letter, the certificate delivered pursuant to Section 2.4(a), and any other certificate or document delivered pursuant to this Agreement will survive the Closing. The right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation, except to the extent the recipient of such representation and warranty has Knowledge (i) of the inaccuracy and (ii) that such inaccuracy was likely to cause damage without disclosing such Knowledge to the party giving the representation and warranty prior to the Closing Date.
Seller will indemnify, defend and hold harmless Buyer, the Company, and their respective Representatives, stockholders, controlling persons, and affiliates (collectively, the Buyer Indemnified Persons) for, and will pay to the Buyer Indemnified Persons the amount of, any loss, liability, claim, damage (including incidental and consequential damages and a devaluation of the Purchased Interest related to a Breach of this Agreement by Seller), expense (including costs of investigation and defense and reasonable attorneys fees) (collectively, Damages), arising, directly or indirectly, from or in connection with:
Except in the case of fraud, intentional misrepresentation, willful misconduct or the indemnification provided under Section 10.3, the remedies provided in this Section 10.2 will be the exclusive remedy available to Buyer, the Company and the other Buyer
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Indemnified Persons with respect to condition of the Plant and the Contemplated Transactions.
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Buyer will indemnify, defend and hold harmless Seller, and will pay to Seller the amount of any Damages arising, directly or indirectly, from or in connection with (a) any Breach of any representation or warranty made by Buyer in this Agreement or in any certificate delivered by Buyer pursuant to this Agreement, (b) any Breach by Buyer of any covenant or obligation of Buyer in this Agreement, or (c) any claim by any Person for brokerage or finders fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by such Person with Buyer (or any Person acting on its behalf) in connection with any of the Contemplated Transactions.
Except with respect to Sections 3.6 (Taxes) and 3.10 (Environmental Matters) (which will survive Closing through the applicable statute of limitations), if the Closing occurs, Seller will have no liability (for indemnification or otherwise) with respect to any representation or warranty, or covenant or obligation to be performed and complied with prior to the Closing Date, unless on or before the second anniversary of the Closing Date, Buyer notifies Seller of a claim specifying the factual basis of that claim in reasonable detail to the extent then known by Buyer; a claim for indemnification or reimbursement based upon any covenant or obligation to be performed and complied with after the Closing Date may be made at any time. If the Closing occurs, Buyer will have no liability (for indemnification or otherwise) with respect to any representation or warranty, or covenant or obligation to be performed and complied with prior to the Closing Date, unless on or before the second anniversary of the Closing Date Seller notifies Buyer of a claim specifying the factual basis of that claim in reasonable detail to the extent then known by Seller.
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Except with respect to Sections 3.6 (Taxes) and 3.10 (Environmental Matters) (which will survive Closing through the applicable statute of limitations and any claim on which shall not be subject to this Section 10.6), Seller will have no liability (for indemnification or otherwise) with respect to the matters described in clause (a) or clause (b) of Section 10.2 until the total of all Damages with respect to such matters exceeds $150,000, and then to the full extent of all such Damages, up to a maximum of $15,000,000. Notwithstanding anything herein to the contrary, Seller will have no liability (for indemnification or otherwise) with respect to this Agreement or the Contemplated Transactions in excess of $15,000,000 other than in the case of a claim for Breach of Section 3.6 (Taxes) or Section 3.10 (Environmental Matters) or a claim under Section 10.3. However, this Section 10.6 will not apply (i) in the case of fraud, willful misconduct or intentional misrepresentation by Seller and (ii) to any Breach of any of Sellers representations and warranties of which Seller had Knowledge at any time prior to the date on which such representation and warranty is made, and Seller will be liable for all Damages with respect to such Breaches.
Buyer will have no liability (for indemnification or otherwise) with respect to the matters described in clause (a) or (b) of Section 10.4 until the total of all Damages with respect to such matters exceeds $150,000, and then to the full extent of all such Damages, up to a maximum of $15,000,000. However, this Section 10.7 will not apply to any Breach of any of Buyers representations and warranties of which Buyer had Knowledge at any time prior to the date on which such representation and warranty is made or any intentional Breach by Buyer of any covenant or obligation, and Buyer will be liable for all Damages with respect to such Breaches.
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Notwithstanding anything in this Agreement or the Contribution Agreement to the contrary, to the extent that any party is entitled to indemnification under both this Agreement and the Contribution Agreement based on the same fact(s), circumstance(s), transaction(s) or event(s) constituting the basis for such claim(s) and the same damages with respect to such claim(s), said party shall be entitled only to a single recovery for such damages. Any resolution of any claim(s) under this Agreement or the Contribution Agreement pursuant to the foregoing sentence shall resolve the claim(s) as to both such agreements.
Except as otherwise expressly provided in this Agreement or the other Contemplated Transaction documents, each party to this Agreement will bear its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the Contemplated Transactions, including all fees and expenses of agents, representatives, counsel, and accountants. Seller will pay all amounts payable to BMO Capital in connection with this Agreement and the Contemplated Transactions. In the event of termination of this Agreement, the obligation of each party to pay its own expenses will be subject to any rights of such party arising from a Breach of this Agreement by another party.
Any public announcement or similar publicity with respect to this Agreement or the Contemplated Transactions is subject to the prior written approval of both Buyer and Seller, except that either Buyer or Seller shall be permitted to make any public announcement required by applicable Legal Requirements or the rules of any stock exchange upon which Buyer or Seller (or their affiliates) are listed; provided that the party making such public announcement shall provide the other party a reasonable opportunity to review and comment on any such public announcement. Seller and Buyer will consult with each other concerning the means by which the Company employees, customers, and suppliers and others having dealings with the Company will be informed of the Contemplated Transactions.
The existing Mutual Non-Disclosure Agreement dated February 6, 2009 between SEACOR Energy Inc. and Seller will remain in full force and effect.
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All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a party may designate by notice to the other parties):
Seller:
MGP Ingredients, Inc.
Cray Business Plaza
100 Commercial St., P.O. Box 130
Atchison, Kansas 66002
Attention: Timothy W. Newkirk, President
Facsimile No.: (913) 367-
with a copy to:
Lathrop & Gage LLP
2345 Grand Blvd, Suite 2200
Kansas City, Missouri 64108
Attention: Wallace E. Brockhoff, Esq.
Facsimile No.: (816) 292-2001
Buyer:
Illinois Corn Processing Holdings LLC
c/o SEACOR Energy Inc.
11200 Richmond Avenue, Suite 400
Houston, Texas 77082
Attention: Peter Coxon
Facsimile No.: (281) 670-0680
with a copy to:
Bryan Cave LLP
211 N. Broadway, Suite 3600
Saint Louis, MO 63102
Attention: J. Powell Carman
Facsimile No.: (314) 552-8070
Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the parties in the courts of the State of Illinois, County of Cook, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Illinois, and each of the
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parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
The parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.
The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.
Except as provided in Section 11.3, this Agreement (along with the documents referred to in this Agreement) supersedes all prior agreements between the parties with respect to its subject matter (including the Letter of Intent between Buyer and Seller dated September 15, 2009) and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment.
Neither party may assign any of its rights under this Agreement without the prior consent of the other party. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be construed to give any Person other than the parties to this Agreement any legal or
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equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their successors and assigns.
If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to Section or Sections refer to the corresponding Section or Sections of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word including does not limit the preceding words or terms.
With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.
This Agreement will be governed by the laws of the State of Delaware without regard to conflicts of laws principles.
This Agreement may be executed in multiple counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, regardless of whether all of the parties have executed the same counterpart. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature Page follows]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.
Buyer: |
Seller: |
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Illinois Corn Processing Holdings LLC |
MGP Ingredients, Inc. |
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By: |
/s/ Peter Coxon |
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By: |
/s/ Timothy W. Newkirk |
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Peter Coxon, President |
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Timothy W. Newkirk, President |
SIGNATURE PAGE TO
LLC INTEREST PURCHASE AGREEMENT
Exhibit A
Legal Description of Plant real estate
Tract I:
A part of the Northeast Quarter of Fractional Section 9, and a part of Lots 6 and 8 in the Southeast Quarter of Fractional Section 4, said Lots 6 and 8 being shown on plat recorded on page 57 of Plat Book B, in the Recorders Office of Tazewell County, Illinois, all being in Township 24 North, Range 5 West of the Third Principal Meridian, Tazewell County, Illinois, and more particularly described as follows:
Commencing at the Northeast corner of said Northeast Quarter of Fractional Section 9; thence South 89 degrees 29 minutes 14 seconds West, along the North line of said Fractional Section 9, a distance of 1,629.48 feet to the place of beginning; thence from said place of beginning South 20 degrees 05 minutes 14 seconds West a distance of 13.41 feet; thence South 86 degrees 48 minutes 22 seconds East a distance of 267.42 feet; thence South 00 degrees 56 minutes 03 seconds West a distance of 159.82 feet to the North line of The Quaker Oats Company by deed recorded in Book 2045, page 72, of the Tazewell County Recorders Office; thence South 89 degrees 27 minutes 16 seconds West along said North line a distance of 104.33 feet; thence South 00 degrees 56 minutes 03 seconds West along the West line of The Quaker Oats Company property as described in aforementioned deed, a distance of 253.00 feet to the South line of The American Distilling Company property; thence South 89 degrees 27 minutes 16 seconds West along the South line of The American Distilling property, a distance of 850.76 feet to the Southeast corner of a parcel conveyed by The American Distilling Company to Pekin River and Warehouse Terminal, Inc. by deed recorded in Book 2351, page 208, of the Tazewell County Recorders Office; thence North 25 degrees 40 minutes 22 seconds West along Easterly line of said parcel, a distance of 371.70 feet, thence North 00 degrees 02 minutes 54 seconds West along Easterly line of said parcel, a distance of 106.63 feet to the South line of said Fractional Section 4; thence continuing North 00 degrees 02 minutes 54 seconds along Easterly line of said parcel 77.64 feet to the Northerly corner of Pekin River and Warehouse Terminal Inc. property, and also being a point on the Northwesterly line of Lot 8 as recorded in Plat Book B, page 57, of the Tazewell County Recorders Office; thence North 46 degrees 59 minutes 11 seconds East along the Northwesterly line, of said Lot 8 a distance of 1,110.92 feet; thence South 43 degrees 00 minutes 54 seconds East a distance of 280.47 feet; thence South 42 degrees 00 minutes 08 seconds West, a distance of 188.94 feet; thence South 19 degrees 51 minutes 12 seconds West, a distance of 276.07 feet; thence South 69 degrees 54 minutes 46 seconds East, a distance of 148.90 feet; thence South 20 degrees 05 minutes 14 seconds West, a distance of 182.59 feet to the place of beginning; situate, lying and being in the County of Tazewell and State of Illinois.
EXHIBIT TO
LLC INTEREST PURCHASE AGREEMENT
Tract II:
A part of the Northeast Quarter of Fractional Section 9, and a part of Lots 6 and 8 in the Southeast Quarter of Fractional Section 4, said Lots 6 and 8 being shown on plat recorded in page 57 of Plat Book B in the Recorders Office of Tazewell County, Illinois, all being in Township 24 North, Range 5 West of the Third Principal Meridian, Tazewell County, Illinois and more particularly described as follows:
Commencing at the Southeast corner of the Southeast Quarter of said Fractional Section 4; thence South 89 degrees 29 minutes 14 seconds West, along the South line of the Southeast Quarter of said Fractional Section 4, a distance of 1,020.92 feet to a concrete monument being the Place of Beginning for the Tract herein being described; thence North 37 degrees 03 minutes 04 seconds East a distance of 1,013.11 feet; thence North 57 degrees 55 minutes West a distance of 292.65 feet to the Northwesterly right-of-way line of South Front Street; thence North 29 degrees 56 minutes 48 seconds East, along the Northeasterly right-of-way line of South Front Street, a distance of 481.39 feet to a concrete monument; thence North 46 degrees 54 minutes 36 seconds West a distance of 263.31 feet to a point on the Northeasterly line of Lot 6 as recorded in Plat Book B, page 57, of the Tazewell County Recorders Office; thence North 24 degrees 46 minutes 48 seconds West, along the Northeasterly line of said Lot 6 a distance of 35.6 feet; thence North 87 degrees 04 minutes 48 seconds West a distance of 214.55 feet to a point on the Northwesterly line of said Lot 6; said point being 200 feet from the Northerly corner of said Lot 6; thence South 46 degrees 59 minutes 11 seconds West, along the Northwesterly line of said Lot 6 and Lot 8 as recorded in Plat Book B, page 57 of the Tazewell County Recorders Office, a distance of 1,146.23 feet to the Northerly corner of Tract I previously described; thence South 43 degrees 00 minutes 54 seconds East, along said Tract I, a distance of 280.47 feet; thence South 42 degrees 00 minutes 08 seconds West, along said Tract I, a distance of 188.94 feet; thence South 19 degrees 51 minutes 12 seconds West, along said Tract I, a distance of 276.07 feet; thence South 69 degrees 54 minutes 46 seconds East, along said Tract I, a distance of 148.90 feet; thence South 20 degrees 05 minutes 14 seconds West, along said Tract I, a distance of 196.00 feet; thence South 86 degrees 48 minutes 22 seconds East, along said Tract I, a distance of 267.42 feet; thence South 00 degrees 56 minutes 03 seconds West, along said Tract I, a distance of 159.82 feet to the property line of Quaker Oats Company; thence North 89 degrees 27 minutes 16 seconds East, along said property line a distance of 345.67 feet; thence North 00 degrees 56 minutes 03 seconds East, along said property line, a distance of 189.47 feet of the Place of Beginning; situate, lying and being in the County of Tazewell and State of Illinois.
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