Exhibit
10.19


 


PROGOLD LIMITED LIABILITY COMPANY


 


 


AMENDED AND RESTATED


MEMBER CONTROL AGREEMENT


 


(CONTAINS RESTRICTIONS ON TRANSFER


OF MEMBERSHIP INTERESTS)


 


 


September 1, 2009


 

















 


PROGOLD LIMITED LIABILITY COMPANY


AMENDED AND RESTATED


MEMBER CONTROL AGREEMENT


(CONTAINS RESTRICTIONS ON TRANSFER


OF MEMBERSHIP INTERESTS)


 


Table of Contents


 


	
  Article

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  I DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  ARTICLE
  II MEMBERS AND BUSINESS

  	
  4

  
	
   

  	
  2.1.

  	
  Members

  	
  4

  
	
   

  	
  2.2.

  	
  Additional Members

  	
  4

  
	
   

  	
  2.3.

  	
  Business of the Company

  	
  4

  
	
   

  	
  2.4.

  	
  Actions Requiring Member and Board Approval

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III MEMBERSHIP INTERESTS

  	
  4

  
	
   

  	
  3.1.

  	
  Membership Interests

  	
  4

  
	
   

  	
  3.2.

  	
  Voting

  	
  5

  
	
   

  	
   

  	
  (a)

  	
  Voting Power

  	
  5

  
	
   

  	
   

  	
  (b)

  	
  Voting Representatives

  	
  5

  
	
   

  	
   

  	
  (c)

  	
  Consents

  	
  5

  
	
   

  	
  3.3.

  	
  No Cumulative Voting

  	
  5

  
	
   

  	
  3.4.

  	
  Preemptive Rights

  	
  5

  
	
   

  	
   

  	
  (a)

  	
  When Preemptive Rights Arise

  	
  5

  
	
   

  	
   

  	
  (b)

  	
  Exemptions from Preemptive Rights

  	
  5

  
	
   

  	
   

  	
  (c)

  	
  Extent of Preemptive Rights

  	
  5

  
	
   

  	
   

  	
  (d)

  	
  Waiver of Preemptive Rights

  	
  5

  
	
   

  	
   

  	
  (e)

  	
  Notice of Preemptive Rights

  	
  6

  
	
   

  	
   

  	
  (f)

  	
  Valuation of Contributions Other Than Money

  	
  6

  
	
   

  	
  3.5.

  	
  Waiver of Dissenters’ Rights

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV CAPITAL CONTRIBUTIONS

  	
  6

  
	
   

  	
  4.1.

  	
  Initial Capital Contributions of Members

  	
  6

  
	
   

  	
  4.2.

  	
  Additional Capital Contributions of Members

  	
  6

  
	
   

  	
   

  	
  (a)

  	
  Voluntary Additional Capital Contributions of Members

  	
  7

  
	
   

  	
   

  	
  (b)

  	
  Required Additional Capital Contributions of Members

  	
  7

  
	
   

  	
  4.3.

  	
  Capital Contributions of New Members

  	
  7

  
	
   

  	
  4.4.

  	
  Capital Accounts

  	
  8

  
	
   

  	
  4.5.

  	
  Transferee Succeeds to Transferor’s Capital Account

  	
  8

  
	
   

  	
  4.6.

  	
  No Right to Return of Contributions

  	
  8

  
	
   

  	
  4.7.

  	
  No Interest on Capital

  	
  8

  
	
   

  	
  4.8.

  	
  Loans to Company

  	
  8

  
	
   

  	
  4.9.

  	
  Default by Member

  	
  8

  



 


i

















 


	
  ARTICLE
  V ALLOCATIONS

  	
  9

  
	
   

  	
  5.1.

  	
  Allocation of Net Income and Net Losses

  	
  9

  
	
   

  	
  5.2.

  	
  Consent to Allocation

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI DISTRIBUTIONS

  	
  9

  
	
   

  	
  6.1.

  	
  Basis of Distributions

  	
  9

  
	
   

  	
  6.2.

  	
  Tax Withholding Obligations Constitute a Distribution

  	
  9

  
	
   

  	
  6.3.

  	
  Allocation of Marketing Costs

  	
  9

  
	
   

  	
  6.4.

  	
  Periodic Distributions

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII BOARD OF GOVERNORS

  	
  10

  
	
   

  	
  7.1.

  	
  Limitation of Governors’ Liability

  	
  10

  
	
   

  	
  7.2.

  	
  Written Action By Governors

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII REQUIRED RECORDS: ACCOUNTING AND TAX MATTERS

  	
  11

  
	
   

  	
  8.1.

  	
  Required Records

  	
  11

  
	
   

  	
  8.2.

  	
  Books of Account

  	
  11

  
	
   

  	
  8.3.

  	
  Report to Members

  	
  11

  
	
   

  	
  8.4.

  	
  Tax Characterization and Returns

  	
  12

  
	
   

  	
  8.5.

  	
  Tax Information

  	
  12

  
	
   

  	
  8.6.

  	
  Tax Matters Partner

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX ASSIGNMENT MEMBERSHIP INTERESTS

  	
  12

  
	
   

  	
  9.1.

  	
  Assignment

  	
  12

  
	
   

  	
   

  	
  (a)

  	
  General Restriction on Assignment

  	
  13

  
	
   

  	
   

  	
  (b)

  	
  Conditions Precedent to Assignment of a Membership Interest
  to a Non-Member

  	
  13

  
	
   

  	
   

  	
  (c)

  	
  Consent to Proposed Assignment of a Membership Interest to
  a Non-Member

  	
  13

  
	
   

  	
   

  	
  (d)

  	
  Effective Date of Assignment

  	
  14

  
	
   

  	
  9.2.

  	
  Acquit Company

  	
  14

  
	
   

  	
  9.3.

  	
  Restriction on Assignment

  	
  14

  
	
   

  	
  9.4.

  	
  First Right of Refusal Upon Proposed Sale of Membership
  Interest

  	
  14

  
	
   

  	
   

  	
  (a)

  	
  Notice of Proposed Sale

  	
  14

  
	
   

  	
   

  	
  (b)

  	
  Options to Other Members

  	
  14

  
	
   

  	
   

  	
  (c)

  	
  Exercise and Lapse of Options

  	
  15

  
	
   

  	
   

  	
  (d)

  	
  Proposed Sale to Another Member

  	
  15

  
	
   

  	
   

  	
  (e)

  	
  Restrictions on Assignment Apply

  	
  15

  
	
   

  	
  9.5.

  	
  Option to Purchase Membership Interest

  	
  15

  
	
   

  	
   

  	
  (a)

  	
  Purchase Events

  	
  15

  
	
   

  	
   

  	
  (b)

  	
  American Crystal Option

  	
  16

  
	
   

  	
   

  	
  (c)

  	
  Purchase Price and Payment

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X DISSOLUTION: DISSOLUTION AVOIDANCE

  	
  16

  
	
   

  	
  10.1.

  	
  Dissolution

  	
  16

  
	
   

  	
   

  	
  (a)

  	
  Events of Dissolution

  	
  16

  
	
   

  	
   

  	
   

  	
  (i)

  	
  Expiration of Fixed Period

  	
  16

  
						



 


ii

















 


	
   

  	
   

  	
   

  	
  (ii)

  	
  Member and Board Approval

  	
  16

  
	
   

  	
   

  	
   

  	
  (iii)

  	
  Termination of Membership of a Member

  	
  16

  
	
   

  	
   

  	
  (b)

  	
  Notice of Dissolution

  	
  17

  
	
   

  	
   

  	
  (c)

  	
  Winding Up of Business

  	
  17

  
	
   

  	
  10.2.

  	
  Dissolution Avoidance

  	
  17

  
	
   

  	
   

  	
  (a)

  	
  Member Consent to Continuation of the Company

  	
  17

  
	
   

  	
   

  	
  (b)

  	
  Status of Member Whose Membership Interest is Terminated

  	
  17

  
	
   

  	
   

  	
  (c)

  	
  No Obligation to Purchase Membership Interest of Terminated
  Member

  	
  17

  
	
   

  	
   

  	
  (d)

  	
  Agreement Not to Retire or Resign

  	
  17

  
	
   

  	
  10.3.

  	
  Distributions Upon Liquidation

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XI NEW MEMBERS BOUND BY AGREEMENT

  	
  18

  
	
   

  	
   

  
	
  ARTICLE
  XII REMEDIES

  	
  18

  
	
   

  	
   

  
	
  ARTICLE
  XIII MISCELLANEOUS

  	
  19

  
	
   

  	
  13.1.

  	
  Entire Agreement

  	
  19

  
	
   

  	
  13.2.

  	
  Amendment

  	
  19

  
	
   

  	
  13.3.

  	
  Severability

  	
  19

  
	
   

  	
  13.4.

  	
  Consent and Waiver

  	
  19

  
	
   

  	
  13.5.

  	
  No Third Party Beneficiary

  	
  19

  
	
   

  	
  13.6.

  	
  Notices

  	
  19

  
	
   

  	
  13.7.

  	
  Binding Effect

  	
  20

  
	
   

  	
  13.8.

  	
  Necessary Instruments and Acts

  	
  20

  
	
   

  	
  13.9.

  	
  Number and Gender

  	
  20

  
	
   

  	
  13.10.

  	
  Interpretation

  	
  20

  
	
   

  	
  13.11.

  	
  Counterparts

  	
  20

  
	
   

  	
  13.12.

  	
  Governing Law

  	
  20

  



 


iii

















 


PROGOLD LIMITED LIABILITY COMPANY


AMENDED AND RESTATED


MEMBER CONTROL AGREEMENT


(CONTAINS RESTRICTIONS ON TRANSFER


OF MEMBERSHIP INTERESTS)


 


THIS
AMENDED AND RESTATED MEMBER CONTROL AGREEMENT is made effective as of the 1st
day of September, 2009, by and between Golden Growers Cooperative, a Minnesota
cooperative association, and American Crystal Sugar Company, a Minnesota
cooperative association.


 


RECITALS


 


WHEREAS,
the parties hereto constitute all of the current Members of ProGold Limited
Liability Company, a Minnesota limited liability company; and


 


WHEREAS,
Section 322B.37 of the Minnesota Limited Liability Company Act authorizes
a “member control agreement” as defined therein; and


 


WHEREAS,
the parties previously entered into a Member Control Agreement dated October 1,
1994 (the “Member Control Agreement”); and


 


WHEREAS,
the parties entered into an Amendment to the Member Control Agreement on October 31,
1997, and Amendment No. 2 to the Member Control Agreement on May 27,
2009 (the “Amendments”); and


 


WHEREAS,
the parties hereto desire to further amend and restate such agreement.


 


NOW,
THEREFORE, in consideration of the foregoing, the mutual agreements of the
parties contained herein, and the mutual benefits to be gained by the
performance hereof, the parties hereto agree as follows:


 


ARTICLE I


DEFINITIONS


 


The
terms defined in this Article I shall, for all purposes of this Agreement
(except as may be otherwise expressly provided in this Agreement or unless the
context otherwise requires), have the following respective meanings:


 


1.1           “Act” means the Minnesota Limited
Liability Company Act contained in Minnesota Statutes, Chapter 322B, as
amended, and any successor thereto.


 


1.2           “Agreement” means this Member Control
Agreement as amended, modified or supplemented from time to time, including any
schedules to the Agreement.


 


1.3           “American Crystal” means American
Crystal Sugar Company, a Minnesota cooperative association.


 


1

















 


1.4           “Articles of Organization” means the
articles of organization filed on behalf of the Company with the Minnesota
Secretary of State, as amended from tine to time.


 


1.5           “Assign”, “Assigned” or “Assignment”
means any voluntary transfer or transfer by operation of law by which a
Membership Interest will be transferred, in whole or in part, by a Member,
including a sale, exchange, merger, consolidation or any other form of
conveyance.


 


1.6           “Board” or “Board of Governors” means
the board of governors of the Company.


 


1.7           “Capital Account” means the account
of a Member which is maintained in accordance with the provisions of Section 4.4.


 


1.8           “Code” means the Internal Revenue
Code of 1986, as amended, and any successor thereto.  Any reference herein to specific sections of
the Code and the Treasury Regulations thereunder shall be deemed to include a
reference to any corresponding provisions of future law.


 


1.9           “Company” means ProGold Limited
Liability Company, a Minnesota limited liability company.


 


1.10         “Contribution Agreement” means a
written agreement between the Company and a Person desiring to make a contribution
which sets forth the terms of such Person’s agreement to make a contribution
(and admission as a Member if not already a Member), including without
limitation the agreed value of the contribution that shall be made by such
Person to the capital of the Company and the Percentage Interest and Voting
Interest to which such Person shall be entitled.


 


1.11         “Contribution Allowance Agreement”
means a written agreement between the Company and a Person which sets forth the
terms upon which such Person has the right, but not the obligation, to make a
contribution (and be admitted as a Member if not already a Member), including
without limitation the agreed value of the contribution that may be made by
such Person to the capital of the Company and the Percentage Interest and
Voting Interest to which such Person shall be entitled.


 


1.12         “Distributions” means the distributions
to the Members of cash or other assets of the Company made from time to time
pursuant to the provisions of this Agreement.


 


1.13         “Financial Rights” means a Member’s
rights to share in Net Income and Net Losses and Distributions with respect to
a Membership Interest in accordance with the terms of this Agreement.


 


1.14         “Golden Growers” means Golden Growers
Cooperative, a Minnesota cooperative association.


 


1.15         “Governance Rights” means all of a
Member’s rights as a Member in the Company other than Financial Rights and the
right to assign Financial Rights.


 


1.16         “Governor” means a natural person
serving on the Board of Governors.


 


2

















 


1.17         “Manager” means a natural person
elected, appointed, or otherwise designated as a manager by the Board of
Governors, and any other natural person considered elected as a manager
pursuant to the Act.


 


1.18         “Member” means a Person reflected in
the Required Records of the Company as the owner of some Governance Rights of a
Membership Interest of the Company.


 


1.19         “Membership Interest” means a Member’s
interest in the Company consisting of the Member’s Financial Rights, right to
assign Financial Rights, Governance Rights, and right to assign Governance
Rights.


 


1.20         [Intentionally Omitted]


 


1.21         “Net Income” and “Net Losses” mean the
profits and losses of the Company, as the case may be, as determined under
Commonly Accepted Accounting Principles as of the close of each of the fiscal
years of the Company.


 


1.22         “Operating Agreement” means the
operating agreement of the Company adopted pursuant to the Act containing
rules, resolutions, or other provisions that relate to the management of the
business or the regulation of the affairs of the Company.


 


1.23         “Person” means any individual,
partnership, limited liability company, corporation, cooperative association,
trust or other entity.


 


1.24         “Percentage Interest” as to any Member
means the “Percentage Interest” reflected on Schedule A for such Member, as
deemed amended in accordance with Sections 4.1(b), 4.2(a), 4.3, and 4.9.  “Percentage Interests” means all of such
Percentage Interests in the Company.


 


1.25         “Preemptive Right” is the right of a
Member to make contributions (or enter into a Contribution Agreement to make
contributions) of a certain amount or to enter into a Contribution Allowance
Agreement specifying future contributions of a certain amount before the Company
may accept new contributions from (or enter into Contribution Agreements with)
other Persons or enter into Contribution Allowance Agreements with other
Persons as provided for in Section 3.4.


 


1.26         “Required Records” means those records
required to be maintained under Section 322B.373 of the Act.


 


1.27         “Tax Withholding Obligation” means an
amount equal to the portion of any amount allocated, credited, or otherwise
distributable to a Member which the Company is required to withhold for income
tax purposes pursuant to any applicable federal, state, local, or other
governmental agency law or regulation.


 


1.28         “Voting Interest” as to any Member
means the “Voting Interest” reflected on Schedule A for such Member, as deemed
amended in accordance with Sections 4.1(b), 4.2(a), 4.3, 4.9 and 10.2(b).  “Voting Interests” means all of such Voting
Interests in the Company.


 


3
















 


ARTICLE II

MEMBERS AND BUSINESS


 


2.1.         Members.  The names and addresses of the Members are
set forth on Schedule A. Each Member shall give the Board of Governors at least
ten (10) days prior written notice of any change in such Member’s address
as shown on Schedule A.  The Members
acknowledge and agree that in addition to this Agreement, the relationship
among the Members and the Company is established and governed by the
Administrative Services Agreement dated as of September 1, 1996 between
the Company and American Crystal.


 


2.2.         Additional Members.  No additional Members shall be admitted to
the Company except as provided in Section 4.3.


 


2.3.         Business of the Company.  Without limiting the general business
purposes or powers of the Company pursuant to the Act, the Members agree that
the business of the Company shall be to own and operate one or more corn wet
milling processing plants that may be located in any of the States of South
Dakota, Minnesota or North Dakota, and to undertake and carry on all activities
necessary or advisable in connection with the ownership and operation of such
plants.  The Company shall not engage in
any other business incompatible with the business of owning and operating such
plants without the prior written consent of Members owning at least a majority
of the Voting Interests.  Notwithstanding
the foregoing, the Members authorize the Company’s lease of its Wahpeton, North
Dakota wet corn milling facility (“Facility”) to Cargill, Incorporated (“Cargill”)
and agree that this lease is compatible with the business of the Company.


 


2.4.         Actions Requiring Member and
Board Approval . 
Notwithstanding anything to the contrary in this Agreement and without
limiting the authority of either the Members or the Board of Governors, the
following Company actions must be approved by both the affirmative vote of
Members owning a majority of the Voting Interests at a duly held meeting of the
Members and the affirmative vote of a majority of the Governors present at a
duly held meeting of the Board of Governors: 
(a) mergers or consolidations involving the Company, (b) sale
or liquidation of substantially all of the assets of the Company, (c) amendment
of the Articles of Organization or Operating Agreement of the Company, (d) dissolution
of the Company as provided in Section 10.1(a), (e) approval of the
strategic plan of the Company and any amendments thereto, which plan shall
include, but need not be limited to, product mix, primary customers, marketing
plans, pricing/margin expectations, and capitalization plans, (f) the
approval of new Members as provided in Section 4.3, and (g) the
approval of loans to the Company by Members as provided in Section 4.8.  A vote on any of the foregoing actions may
take place at a meeting of the Board or Members only if the notice of such
meeting includes specific notice of the action to be considered.


 


ARTICLE III

MEMBERSHIP INTERESTS


 


3.1.         Membership Interests.  The Membership Interests reflected in
Schedule A are ordinary Membership Interests of one class, without series, and
shall have the rights provided by 


 


4

















 


law,
subject to any statement in this Agreement of the specific rights or terms of
such Membership Interests.


 


3.2.         Voting.


 


(a)           Voting Power.  Members shall be entitled to vote on all
matters in proportion to their Voting Interests as set forth on Schedule A.


 


(b)           Voting Representatives.  Each Member who is not an individual shall
designate in writing an authorized voting representative to cast such Member’s
vote and may also designate one or more alternate authorized voting
representatives.  Any of such alternate
authorized voting representatives may cast such Member’s vote in the absence of
the authorized voting representative.  A
Member may designate a new authorized voting representative or new alternate
authorized voting representatives by written notice to the other Members.


 


(c)           Consents.  Whenever this Agreement or the Act allows for
or requires the Members to consent to an action, the authorized voting
representative or alternate authorized voting representatives of each Member
provided for in Section 3.2(b) shall grant or withhold such consents
on behalf of such Member.


 


3.3.         No Cumulative Voting.  Members shall not be entitled to cumulate
their voting power for the election of Governors.


 


3.4.         Preemptive Rights.


 


(a)           When Preemptive Rights Arise.  A Member has a Preemptive Right whenever the
Company proposes to accept contributions from (or enter into Contribution
Agreements with) other Persons or enter into Contribution Allowance Agreements
with other Persons, except as provided in Section 3.4(b).  Members shall have such Preemptive Rights
regardless of whether the contribution is to be made in the form of money or a
form other than money.


 


(b)           Exemptions from Preemptive
Rights.  No Preemptive Rights arise as
to contributions to be accepted from (or Contribution Agreements to be entered
into with) other Persons or as to Contribution Allowance Agreements to be
entered into with other Persons when the contribution is (i) to be made or
reflected pursuant to a plan of merger or exchange, or (ii) to be made or
reflected pursuant to a plan of reorganization approved by a court of competent
jurisdiction pursuant to a state or federal statute.


 


(c)           Extent of Preemptive Rights.  The extent to which each Member may make a
new contribution, or obtain the right to make a new contribution under a
Contribution Allowance Agreement, by exercise of a Preemptive Right is the
ratio that such Member’s Percentage Interest before the new contribution bears
to the total of all Members’ Percentage Interests before the new contribution.


 


(d)           Waiver of Preemptive Rights.  A Member may waive a Preemptive Right in
writing.  Unless otherwise provided in
the waiver, a waiver of Preemptive Rights is effective 


 


5

















 


only
for the proposed contribution or Contribution Allowance Agreement described in
the waiver.


 


(e)           Notice of Preemptive Rights.  When the Company proposes to accept new contributions
(or enter into Contribution Agreements) or enter into Contribution Allowance
Agreements with respect to which Members have Preemptive Rights under this Section 3.4,
the Board of Governors shall cause notice to be given to each Member entitled
to Preemptive Rights.  The notice must be
given at least sixty (60) days before the date by which the Member must
exercise a Preemptive Right and must contain (i) the extent of the Member’s
Preemptive right, being:  (1) in the
case of a Preemptive Right to make a contribution (or enter into a Contribution
Agreement), the amount of the contribution to be made, and (2) in the case
of a Preemptive Right to enter into a Contribution Allowance Agreement, the
amount of the contribution to be allowed under that Contribution Allowance
Agreement, (ii) the method used to determine the extent of the Member’s
Preemptive Rights, (iii) the terms and conditions upon which the Member
may make a contribution (or enter into a Contribution Agreement) or enter into
a Contribution Allowance Agreement, and (iv) the time within which and the
method by which the Member must exercise the Preemptive Right.


 


(f)            Valuation of Contributions
Other Than Money.  In the
event the Company proposes to accept contributions from (or enter into Contribution
Agreements with) Persons or enter into Contribution Allowance Agreements with
Persons when the contribution is to be made in a form other than money, then
the value of such contribution shall be determined by appraisals as provided in
this Section 3.4(f).  The value of
the contribution shall first be determined by the opinion of two independent
appraisers, one of which shall be selected by the Person who is to make the
contribution and one of which shall be selected by Members owning a majority of
the Voting Interests.  If the results of
the two appraisers do not differ by more than ten percent (10%) of the higher
appraisal, then the average of the two appraisals shall be considered the value
of the contribution.  If the results of
the two appraisers differ by more than ten percent (10%) of the higher
appraisal, a third appraiser shall be selected by mutual agreement of the first
two appraisers.  The average of the two
closest appraisals among the three appraisals shall then be considered the
value of the contribution.  All such
appraisals shall be completed prior to notice of Preemptive Rights being given
to Members pursuant to Section 3.4(e). 
The cost of all appraisals shall be paid by the Company.


 


3.5.         Waiver of Dissenters’ Rights.  Each Member hereby waives and agrees not to
assert dissenters’ rights under the Act, subject to Section 322B.873,
Subd. 3 of the Act.


 


ARTICLE IV

CAPITAL CONTRIBUTIONS


 


4.1.         Initial Capital
Contributions of Members.  The
names of the Members and the respective initial contributions are reflected on
Schedule A. Each Member shall be credited with their respective Percentage
Interest set forth on Schedule A.


 


6

















 


4.2.         Additional Capital
Contributions of Members.


 


(a)           Voluntary Additional Capital
Contributions of Members. 
Additional voluntary contributions from Members shall be accepted and
additional Contribution Agreements or Contribution Allowance Agreements shall
be entered into with Members by the Board of Governors only upon (i) the
prior written directive of Members owning at least a majority of the Voting
Interests, regardless of whether the Board approves of such contribution of
additional capital, and (ii) in cases where Preemptive Rights provided for
in Section 3.4 apply, only to the extent that the Members have (1) waived
in writing such Preemptive Rights, or (2) failed to exercise such
Preemptive Rights by the date fixed by the Board for the exercise of those
Preemptive Rights in the Notice of Preemptive rights required by Section 3.4(e),
provided that within one year of such date the Board may accept contributions
or enter into Contribution Agreements or Contribution Allowance Agreements as
directed by the Members only on terms no less favorable to the Company than those
offered to the Members.  Upon such
written directive and contribution of additional capital, Schedule A shall be
deemed to be appropriately amended. 
There shall be no limit on the Voting Interest or Percentage Interest
which any Member may own.


 


(b)           Required Additional Capital
Contributions of Members. 
Except as provided in Section 4.1(b), on September 1, 1997 and
each September 1 thereafter, the Members shall, if approved by the Board
of Governors, contribute a pro rata share, based upon the Percentage Interests
of the Members, of up to an aggregate annual maximum of Five Million Dollars
($5,000,000), to the capital of the Company. 
The amount of such contributions shall be determined by the Board of
Governors of the Company.  No other
additional contributions to the capital of the Company from Members shall be
required without the prior written consent of all the Members.  If such consent is obtained, such required
additional contributions shall be assessed against the Members based upon the
Percentage Interests of the Members. 
Notwithstanding the foregoing, the Board of Governors may, in its
discretion, by resolution require that any Member to whom a Tax Withholding
Obligation is attributable make an additional contribution to the capital of
the Company in an amount equal to such Tax Withholding Obligation.


 


4.3.         Capital Contributions of New
Members.  New contributions from Persons
seeking to become Members shall be accepted and new Contribution Agreements or
Contribution Allowance Agreements shall be entered into with Persons seeking to
become Members (and new Membership Interests shall be thereby granted) by the
Board of Governors only upon (a) both the affirmative vote of a majority
of the Governors present at a duly held meeting of the Board and the prior
written approval of Members owning at least a majority of the Voting Interests,
and (b) in cases where Preemptive Rights provided for in Section 3.4
apply, only to the extent that the Members have (i) waived in writing such
Preemptive Rights, or (ii) failed to exercise such Preemptive Rights by
the date fixed by the Board for the exercise of those Preemptive Rights in the
Notice of Preemptive rights required by Section 3.4(e), provided that
within one year of such date the Board may accept contributions or enter into
Contribution Agreements or Contribution Allowance Agreements only on terms no
less favorable to the Company than those offered to the Members.  Upon such approval and issuance of additional
Membership Interests, Schedule A shall be deemed to be appropriately
amended.  Nothing in this Section 4.3
shall be construed to limit the effect of Section 9.1 with respect to the
Assignment of Membership Interests by Members.


 


7

















 


4.4.         Capital Accounts.  A separate Capital Account shall be
maintained for each Member.  The initial
balances in the Capital Accounts shall be, for each Member, the initial capital
contribution as set forth on Schedule A. The Capital Account of each Member
shall be increased by (a) the amount of any additional contribution such
Member makes to the capital of the Company pursuant to Section 4.2; (b) the
agreed value of property contributed by such Member to the Company, net of
liabilities which the Company assumes or to which the property is subject; and (c) the
share of Company income and gains (including income and gains exempt from tax)
allocated to such Member under the provisions of Article V; and shall be
decreased by (i) any Distribution made by the Company’ to such Member pursuant
to the provisions of Article VI; (ii) the agreed value of any
property distributed to such Member by the Company, net of liabilities attached
to such property which the Member assumes or to which the property is subject;
and (iii) the share of Company losses and deductions (including any
expenditures of the Company described in Section 705(a)(2)(B) of the
Code or treated as such expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i))
allocated to such Member under the provisions of Article V.


 


4.5.         Transferee Succeeds to
Transferor’s Capital Account.  Any transfers permitted by Article IX of
this Agreement by a Member to a transferee of all or a part of such Member’s
Financial Rights in the Company shall vest in such permitted transferee (and
such permitted transferee shall become a successor in interest to) the
proportionate interest of the transferor Member’s Capital Account to the extent
of the Membership Interest transferred.


 


4.6.         No Right to Return of
Contributions.  The Members
shall have no right to the withdrawal or the return of their respective
contributions to the capital of the Company except to the extent set forth in Section 10.4
upon liquidation of the Company.


 


4.7.         No Interest on Capital.  No interest shall be paid by the Company on
the initial or any subsequent contribution to the capital of the Company.


 


4.8.         Loans to Company.  A Member may lend money to the Company from
time to time, if authorized by the Board of Governors and Members owning at
least a majority of the Voting Interests. 
Any such loan shall not be treated as a contribution to the Capital of
the Company for any purpose or entitle the Member to any increase in such
Member’s share of the income, gain, losses, deductions, credits or
Distributions of the Company and the Company shall be obligated to such Member
for the amount of any such loan.  The
interest rate and other material terms of any loan shall be as agreed to by the
Member making the loan and approved by the Board of Governors and Members owning
at least a majority of the Voting Interests.


 


4.9.         Default by Member.  In the event that a Member fails to make any
payment, or any installment thereof, when due, of any contribution or other
obligation hereunder or under a Contribution Agreement, the Board of Governors
may enforce such obligation in such manner as may be permitted by law.  Without limiting the generality of the
foregoing, the Board of Governors may, in its sole discretion, (i) bring
an action at law or in equity to enforce such obligation, (ii) assess
interest on the unpaid amount at the highest rate of interest then being
charged to the Company by any lender, (iii) allow the remaining Members to
loan funds to the Company in the amount of the deficiency, (iv) retain
amounts of Distributions otherwise distributable to the defaulting Member as an
offset to the deficiency, and/or (v) allow the 


 


8

















 


remaining
Members to contribute the amount of the deficiency, thereby increasing their
Membership Interests in relation to the defaulting Member.  If the Board allows the remaining Members to
contribute the amount of the deficiency pursuant to clause (v) above, each
remaining Member shall have the right to contribute an amount in the proportion
which each such remaining Member’s Percentage Interest bears to the aggregate
Percentage Interests of all remaining Members who desire to participate in such
contribution.  Upon such contribution by
the remaining Members, Schedule A shall be deemed to be appropriately
amended.  If the Board elects to pursue
remedies other than as provided in clause (v) above, the Voting Interest
and Percentage Interest of the defaulting Member shall remain unaffected by the
default.  Each Member agrees that in the
event such Member fails to make any payment, or any installment thereof, when
due, of any contribution or other obligation hereunder or under a Contribution
Agreement, such Member and the voting representatives of such Member and
Governors appointed by such Member shall not be permitted in person or by proxy
to vote either as a Member or a Governor on the question of what action the
Company shall take with respect to such default.


 


ARTICLE V

ALLOCATIONS


 


5.1.         Allocation of Net Income and
Net Losses .  Net Income
and Net Losses shall be allocated annually among the Members based on their
Percentage Interests as reflected on Schedule A, subject to adjustment
reflecting the allocation of marketing costs as provided in Section 6.3,
and the Capital Accounts shall be adjusted in accordance with Section 4.4.


 


5.2.         Consent to Allocation.  Each Member, by execution of this Agreement,
expressly consents to the method provided herein for the allocation of Company
profits and losses.


 


ARTICLE VI

DISTRIBUTIONS


 


6.1.         Basis of Distributions.  Any Distributions authorized by the Board of
Governors, other than Distributions upon liquidation pursuant to Section 10.3
and Tax Withholding Obligations which constitute Distributions pursuant to Section 6.2,
shall be distributed among the Members based on their Percentage Interests as
reflected on Schedule A, subject to adjustment to reflect the allocation of
marketing costs as provided in Section 6.3, provided that the Board may,
in its discretion, reduce the amount otherwise distributable to any Member by
the amount of a Tax Withholding Obligation attributable to such Member which
has not previously reduced a Distribution to such Member.


 


6.2.         Tax Withholding Obligations
Constitute a Distribution.  Any
Tax Withholding Obligation which is withheld by the Company shall constitute a
Distribution of such amount by the Company to the Member to whom such Tax
Withholding Obligation is attributable.


 


6.3.         Allocation of Marketing
Costs.  It is anticipated that the
Company will enter into Marketing Agreements with United Sugars Corporation (“United”)
and Midwest Agri Commodities Company (“Midwest”) under which United and Midwest
will market certain products produced by the Company.  The Marketing Agreements will require that
the Company 


 


9

















 


reimburse
United and Midwest for their marketing costs through the payment of a “Structural
Charge,” “Transactional Charges” and “Direct Costs” (as such terms are defined
therein).  It is the intention of the
Members that Golden Growers be effectively responsible for payment of one
hundred percent (100%) of the Structural Charge and Transactional Charges paid
by the Company to United and Midwest during the first five (5) years that
such charges are payable pursuant to the Marketing Agreements.  Thereafter, the Structural Charges and
Transactional Charges shall be the responsibility of all Members in proportion
to their respective Percentage Interests. 
In furtherance of the foregoing intentions, the Members hereby agree
that the Company shall make appropriate adjustments to the respective
allocations of Net Income and Net Losses and Distributions to Members in order
to reduce the allocations of Net Income and the Distributions (and increase the
allocations of Net Losses) to Golden Growers, and increase the allocations of
Net Income and the Distributions (and reduce the allocations of Net Losses) to
American Crystal and Minn-Dak (on the basis of their respective Percentage
Interests) during such five year period, to provide that Golden Growers will
effectively pay such Structural Charge and Transactional Charges.


 


6.4.         Periodic Distributions.  The Board of Governors shall authorize
periodic Distributions of cash to the Members based on their Percentage
Interests as reflected on Schedule A, subject to the adjustments provided in
this Article VI, in a total amount equal to the estimated Net Income, if
any, for the then current fiscal year to the extent such a Distribution is
legally permitted.  A final Distribution
shall be paid to the Members, subject to the adjustments provided in this Article VI,
within ninety (90) days following the end of the fiscal year of the Company
based on the actual Net Income for the preceding fiscal year to the extent such
a Distribution is legally permitted.  The
Board may, in its discretion, reduce the amount otherwise distributable to any
Member by the amount of a Tax Withholding Obligation attributable to such
Member which has not previously reduced a Distribution to such Member.


 


ARTICLE VII

BOARD OF GOVERNORS


 


7.1.         Limitation of Governors’
Liability.  No Governor
of the Company shall be personally liable to the Company or its Members for
monetary damages for breach of fiduciary duty by such Governor; provided,
however, that this Section 7.1 shall not eliminate or limit the liability
of a Governor to the extent provided by applicable law (a) for any breach
of the Governor’s duty of loyalty to the Company or its Members, (b) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (c) under Section 322B.56 or 80A.23 of
the Minnesota Statutes, (d) for any transaction from which the Governor
derived an improper personal benefit, or (e) for any act or omission
occurring prior to the effective date of this Agreement.  It is the intention of the Members of the
Company to eliminate or limit the personal liability of the Governors of the
Company to the greatest extent permitted under Minnesota Law.  If amendments to Minnesota Statutes are
passed after this Agreement becomes effective which authorize limited liability
companies to act to further eliminate or limit the personal liability of
Governors, then the liability of the Governors of the Company shall be
eliminated or limited to the greatest extent permitted by the Minnesota
Statutes as so amended.  No amendment to
or repeal of the provisions of this Section 7.1 shall apply to or have any
effect on the liability or alleged liability of any Governor of the Company for
or with respect to any acts or omissions of such Governor occurring prior to
such amendment or repeal.


 


10

















 


7.2.         Written Action By Governors.  Any action required or permitted to be taken
at a meeting of the Board of Governors not needing approval by the Members, may
be taken by written action signed by the number of Governors that would be
required to take such action at a meeting of the Board of Governors at which
all Governors are present; provided, however, that at least one Governor
appointed by each Member must sign such written action.  The written action is effective when signed
by the required number of Governors, unless a different effective time is
provided in the written action.  When
written action is taken by less than all Governors, notice of the text and
effective date of such written action must be immediately given to all
Governors.


 


ARTICLE VIII

REQUIRED RECORDS:  ACCOUNTING AND TAX
MATTERS


 


8.1.         Required Records.  The Board of Governors shall maintain the
Required Records of the Company in a complete and accurate manner.  The Board of Governors shall maintain the
Required Records on a current basis, including without limitation the recording
of any transfer of all or part of a Member’s Membership Interest pursuant to Article IX
in the Required Records as soon as the Board receives notice of such
transfer.  The Board of Governors shall
conspicuously note in the Required Records of the Company that the Members’
interests are governed by this Agreement and that this Agreement contains a restriction
on the assignment of Financial Rights. 
The Required Records of the Company shall at all times be kept at the
principal executive office of the Company or such other place or places within
the United States as the Board of Governors may determine.  Each of the Members shall have access to and
may inspect and copy the Required Records as provided in Section 322B.373
of the Act.


 


8.2.         Books of Account.  The Board of Governors shall keep complete
and accurate accounts of all transactions of the Company in proper books of
account and shall enter or cause to be entered therein a full and accurate
account of each and every Company transaction in accordance with accounting
principles and methods as determined by the Board of Governors with the advice
of the Company’s accountants.  The books
of account of the Company shall be closed and balanced as of the end of each
fiscal year.  The books of account and
other records of the Company shall at all times be kept at the principal
executive office of the Company or such other place or places within the United
States as the Board of Governors may determine.


 


Each
of the Members shall have access to and may inspect and copy any of such books
and records at all reasonable times and in accordance with the Act.


 


8.3.         Report to Members.  Not later than ninety (90) days after the end
of each fiscal year of the Company, each Member shall be furnished with a
report of the business and operations of the Company during such fiscal year,
which report shall constitute the accounting of the Board of Governors for such
fiscal year.  The report shall contain
financial statements, including statements of assets and liabilities, of income
and expenses, of Members’ equity and changes in financial position, of cash
flow, and of the amount and nature of any compensation paid to the Board of
Governors and Managers during the period, including a description of the
services performed in relation thereto, and shall otherwise be in such form and
have such content as the Board of Governors deems proper.


 


11
















 


8.4.         Tax Characterization and
Returns.  The Members acknowledge that
the Company will be characterized as a partnership for income tax
purposes.  The Chief Manager of the
Company shall prepare or cause to be prepared and shall file on or before the
due date (or any extension thereof) any federal, state or local tax returns
required to be filed by the Company. 
Members owning at least a majority of the Voting Interests shall have
complete discretion and authority concerning any tax election required or permitted
to be made by the Company.


 


8.5.         Tax Information.  The Chief Manager of the Company shall
deliver or cause to be delivered to each Member within ninety (90) days after
the end of each fiscal year (or within a reasonable time thereafter if the
Company’s due date for a tax return is extended) such information concerning
the Company as is necessary or appropriate to permit each Member to properly
complete any federal, state or local income tax return in which Members must
include items attributable to the Company. 
The Chief Manager shall endeavor to provide sufficient information from
time to time during the year as may be appropriate to permit the Members to pay
federal, state and local estimated taxes.


 


8.6.         Tax Matters Partner.  The Tax Matters Partner shall be the Member
so designated in accordance with Sections 6221-33 of the Code and related
Treasury Regulations and such Member shall assume the responsibilities assigned
to tax matters partners therein.  American
Crystal shall be the Tax Matters Partner until such time as Members owning at
least a majority of the Voting Interests may designate a successor Tax Matters
Partner.  If on advice of counsel the Tax
Matters Partner determines that it is in the best interest of the Members that
the final results of any administrative proceeding be appealed by the
institution of legal proceedings, the Tax Matters Partner is hereby authorized
to commence such legal proceedings in such forum as the Tax Matters Partner, on
advice of counsel, determines to be appropriate.  In the event the Tax Matters Partner selects
a forum for appeal in which the Members are required to deposit a proportionate
share of any disputed tax before making such appeal, the Tax Matters Partner
must obtain the approval of Members owning at least a majority of the Voting
Interests.  If such approval is obtained,
each of the Members will be required to deposit and pay such Member’s
proportionate share of such disputed tax before participating in such
appeal.  The Members acknowledge that
such deposit under current law does not earn interest and that the failure to
so deposit may preclude a Member from pursuing any other sort of appeal by
court action.  The Tax Matters Partner
shall not be liable to any other Member for any action taken with respect to
any such administrative proceedings or appeal so long as the Tax Matters
Partner is not grossly negligent or guilty of willful misconduct.  Any costs paid or incurred by the Tax Matters
Partner in connection with its activities in such capacity shall be reimbursed
by the Company.  Each Member acknowledges
that any cost a Member may incur in connection with an audit of such Member’s
income tax return, including an audit of such Member’s investment in this
Company, is such Member’s sole responsibility and obligation; and neither the
Company, the Board of Governors, the Managers nor the Tax Matters Partner shall
be liable to any Member for reimbursement or sharing of any such costs.


 


12

















 


ARTICLE IX

ASSIGNMENT MEMBERSHIP INTERESTS


 


9.1.         Assignment.


 


(a)           General Restriction on
Assignment.  No Member
may Assign all or part of such Member’s Membership Interest except as permitted
under this Section 9.1.  A Member’s
Membership Interest may be Assigned in whole or in part, without the consent of
any other Member, to another Person already a Member at the time of the
Assignment.  Notwithstanding anything to
the contrary in this Agreement, no Member may assign all or a part of such
Member’s Membership Interest to any person who is not already a Member at the
time of the assignment without Cargill’s prior written consent during the term
of Cargill’s lease of the Facility or any extension thereof.  Any other Assignment of a Membership
Interest, in whole or in part, is effective only if (1) Members owning a
majority of the Voting Interests and a majority of the Percentage Interests
collectively owned by Members (excluding the Member seeking to make the
Assignment and such Member’s Voting Interest and Percentage Interest), approve
the Assignment by written consent, which consent may be granted or withheld as
the remaining Members may determine in their sole discretion, and (2) the
Member seeking to make the Assignment and the assignee comply with the
provisions of Section 9.1(b).


 


(b)           Conditions Precedent to
Assignment of a Membership Interest to a Non-Member.  Any Member desiring to Assign such Member’s
Membership Interest, in whole or in part, to a non-Member shall notify the
Board of Governors of such desire.  Such
notice to the Board of Governors shall include (i) an opinion of counsel
(whose fees and expenses shall be borne by such assigning Member), satisfactory
in form and substance to the Board, to the effect that either (1) the
Assignment constitutes an exempt transaction, and does not require registration
under applicable state and federal securities laws, or (2) the Membership
Interest, or portion thereof, to be Assigned is duly and properly registered
under all applicable state and federal securities laws; (ii) evidence
satisfactory to the Board that the assignee of the Membership Interest is
eligible to become a Member pursuant to this Article IX and of such
assignee’s agreement to comply with and be bound by the terms of this Member
Control Agreement and to execute any and all documents that the Board may deem
necessary in connection with such assignee becoming a Member as provided for in
Article XI; (iii) evidence satisfactory to the Board that the
transfer will not impair the ability of the Company to be taxed as a
partnership for federal income tax purposes or to take advantage of accelerated
depreciation under the Code; (iv) representations in form and substance
satisfactory to the Board that the assignee is acquiring the Membership
Interest for such assignee’s own account for investment and not with a view to
the distribution thereof; and (v) a written agreement signed by the
assignee that the Membership Interest being acquired will in no event be resold
unless properly registered under all applicable state and securities laws or
exempt therefrom.


 


(c)           Consent to Proposed
Assignment of a Membership Interest to a Non-Member.  In the event that a Member seeks to Assign
such Member’s Membership Interest, in whole or in part, to a non-Member, the
Board of Governors shall (i) so notify the Members and, by special meeting
called on thirty (30) days written notice (or by solicitation of signatures on
fifteen (15) days written notice), (ii) request in writing the decision of
each Member to grant or withhold consent pursuant to this Section 9.1.  Failure of a Member to respond either
affirmatively or negatively to such request within sixty (60) days of such
written notice shall be construed as withholding such consent.  Consent to a proposed Assignment of a
Membership Interest (which includes all of a Member’s Governance Rights)
pursuant to this Section 9.1 also constitutes the consent necessary to
avoid the dissolution of the Company which would otherwise occur under the Act
on account of the assignor ceasing to be a Member if the quantum 


 


13

















 


of
consent required to avoid such dissolution is not greater than the consent
pursuant to this Section 9.1.


 


(d)           Effective Date of Assignment.  All Assignments of all or part of a Member’s
Membership Interest in the Company shall be deemed effective on the first day
of the month next following the month in which the Assignment occurs and the
assignee’s name and address and the nature and extent of the Assignment are
reflected in the Required Records of the Company.  The appropriate Company records shall be
conspicuously noted to prevent the sale or Assignment of Membership Interests
otherwise than in accordance with this Article IX.


 


9.2.         Acquit Company.  In the absence of written notice to the
Company of any Assignment of a Membership Interest, any payment by the Company
to the assigning Member (or the assigning Member’s successor in interest) shall
acquit the Company of liability to the extent of such payment to any other
Person who may have any interest in such payment by reason of an Assignment by
the Member, whether by actual Assignment or by operation of law.


 


9.3.         Restriction on Assignment.  Notwithstanding the foregoing provisions of
this Article IX, no Assignment of a Membership Interest may be made if the
Membership Interest sought to be Assigned, when added to the total of all other
Membership Interests Assigned within the period of twelve (12) consecutive
months prior thereto, would result in the termination of the Company under Section 708
of the Code; provided, however, that Members owning at least a majority of the
Voting Interests may waive such restriction on transfer.


 


9.4.         First Right of Refusal Upon
Proposed Sale of Membership Interest.


 


(a)           Notice of Proposed Sale.  In the event that a Member desires to Assign
its Membership Interest, in whole or in part, by a sale for consideration to
another Person who is not a Member pursuant to a bona fide offer, such Member
shall give written notice of such fact to the Company and the other
Members.  Such notice shall include (i) the
portion of such Member’s Membership Interest to be sold, (ii) the identity
of the Person making the bona fide offer, and (iii) a copy of the bona
fide offer, which shall include the purchase price, payment terms, and all
other terms and conditions of the offer.


 


(b)           Options to Other Members.  For a period of forty-five (45) days from the
date of receipt of the notice of a proposed sale, each other Member shall have
an initial option to purchase a portion of the Membership Interest offered for
sale based on the proportion which such Member’s Voting Interest bears to the
total Voting Interests of all the other Members.  In the event all of the other Members do not
exercise such initial option, the Company shall give notice, within five days
of the end of such forty-five (45) day initial option period, to all of the
Members who exercised their initial option advising them of the portion of the
Membership Interest offered for sale remaining. 
For a period of fifteen (15) days after the- Company gives such notice,
the Members who exercised their initial option shall then have a secondary
option to purchase a portion of such remaining portion of the Membership
Interest offered for sale based on the proportion which such Member’s Voting
Interest bears to the total Voting Interests of all the Members who exercised
their initial option.  Similar options
shall continue to arise in favor of those Members who continue to exercise
their options hereunder in the same manner as the secondary option provided for
in the preceding sentence until all of the Membership Interest 


 


14

















 


offered
for sale has been purchased or no Member desires to purchase the remaining
portion of such Membership Interest. 
Notwithstanding the foregoing, the other Members may agree among
themselves as to the portion of the Membership Interest offered for sale or
remaining portion thereof, as the case may be, to be purchased by each,
provided all of the Membership Interest offered for sale is purchased.  The purchase price of any Membership
Interest, or portion thereof, purchased by exercise of an option granted
hereunder shall be the purchase price pursuant to the bona fide offer, which
shall be payable in such amounts and at such times and pursuant to such other
terms and conditions as provided in the bona fide offer.


 


(c)           Exercise and Lapse of
Options.  The options provided in Section 9.4(b) may
be exercised by giving timely written notice to the Member whose Membership
Interest is the subject of such option and to the Company.  In the event that the other Members fail to
exercise their respective options to collectively purchase the entire
Membership Interest offered for sale, then all of the options exercised as
provided in Sections 9.4(b) and 9.4(c) shall be deemed to be
rescinded from the outset as though they never had been exercised.  The Member whose Membership Interest, or
portion thereof, is offered for sale may at any time within sixty (60) days
after lapse or rescission of the options provided in Section 9.4(b) sell
such Membership Interest to the Person specified in the notice of proposed
sale; provided, that (i) such sale shall be at the purchase price pursuant
to the bona fide offer and according to the other terms and conditions as
provided in the bona fide offer, (ii) all consents required under the Act
and this Agreement are obtained, (iii) such Member and the proposed
purchaser comply with all applicable provisions of the Act and this Agreement,
and (iv) the proposed purchaser agrees in writing to become subject to
this Agreement.  In the event that the
Member shall fail to make such sale within such sixty (60) day period, the
Member shall again comply with the terms of this Section 9.4 as a
condition precedent to any subsequent sale of the Membership Interest.


 


(d)           Proposed Sale to Another
Member.  Notwithstanding anything to
the contrary herein, the provisions of this Section 9.4 shall not apply
and need not be complied with if the proposed purchaser is currently a Member
of the Company.


 


(e)           Restrictions on Assignment
Apply.  Nothing in this Section 9.4
shall be construed to limit the effect of the provisions of the Act or this
Agreement with respect to restrictions on the Assignment or other transfer of
Governance Rights, Financial Rights, and/or Membership Interests by Members.


 


9.5.         Option to Purchase
Membership Interest.


 


(a)           Purchase Events.  The following shall constitute a “Purchase
Event”:


 


(i)            Any Person acquires more than ten percent (10%) of
the outstanding Units of Golden Growers; or


 


(ii)           The articles of incorporation and/or bylaws of
Golden Growers are amended to alter member voting from one member/one vote to a
system that permits a member to have more than one vote.


 


15

















 


(b)           American Crystal Option.  Upon the occurrence of a Purchase Event,
American Crystal shall have the option to purchase all of the Membership
Interest of Golden Growers.  Golden
Growers shall provide written notice to American Crystal within sixty (60) days
following the occurrence of a Purchase Event. 
American Crystal shall have sixty (60) days following receipt of the
notice in which to exercise its option to purchase Golden Growers’ Membership
Interest.  American Crystal may exercise
its option by providing written notice to Golden Growers of its desire to
exercise the option, which notice must be sent to Golden Growers within such
sixty (60) day period.  American Crystal’s
failure to exercise the option within such sixty (60) day period shall result
in a waiver of the option.


 


(c)           Purchase Price and Payment.  The Purchase Price for Golden Growers’
Membership Interest shall be equal to the appraised value using the following
procedure.  The value of the Golden
Growers’ Membership Interest shall first be determined by the opinion of two
independent appraisers, one of which shall be selected by Golden Growers and
one of which shall be selected by American Crystal.  If the results of the two appraisers do not
differ by more than ten percent (10%) of the higher appraisal, then the average
of the two appraisals shall be considered the value of the Membership
Interest.  If the results of the two
appraisers differ by more than ten percent (10%) of the higher appraisal, a
third appraiser shall be selected by mutual agreement of the first two
appraisers.  The average of the two
closest appraisals among the three appraisals shall then be considered the
value of the Membership Interest.  All
such appraisals shall be completed within 60 days following the exercise of the
option to purchase by American Crystal. 
The cost of all appraisals shall be paid by the Company.  The closing on sale of the Membership
Interest shall occur within sixty (60) days following completion of the final
appraisal; provided that, ACSC may elect not to proceed with the closing in the
event Purchase Price established pursuant to the foregoing procedure is, in the
sole judgment of American Crystal, not satisfactory.  The Purchase Price shall be paid in cash at
closing.


 


ARTICLE X

DISSOLUTION:  DISSOLUTION AVOIDANCE


 


10.1.       Dissolution.


 


(a)           Events of Dissolution.  The Company shall be dissolved upon the
occurrence of any of the following events:


 


(i)            Expiration of Fixed Period.  When the period fixed in the Articles of
Organization for the duration of the Company expires;


 


(ii)           Member and Board Approval.  Upon the approval of both the affirmative
vote of Members owning a majority of the Voting Interests and the affirmative
vote of a majority of the Governors present at a duly held meeting of the Board
of Governors; or


 


(iii)          Termination of Membership of a Member.  Upon the death/ dissolution (as applicable),
retirement, resignation, expulsion, bankruptcy of a Member or occurrence of any
other event that terminates the continued membership of a Member in 


 


16

















 


the
Company, unless the remaining Members consent to avoid dissolution pursuant to Section 10.2.


 


(b)           Notice of Dissolution.  As soon as possible following the occurrence
of any of the events specified in Section 10.1(a) effecting the
dissolution of the Company, the appropriate representative of the Company shall
execute a notice of dissolution in such form as shall be prescribed by the
Minnesota Secretary of State, setting forth the information required under the
Act, and shall file same with the Minnesota Secretary of State’s office.


 


(c)           Winding Up of Business.  Upon filing a notice of dissolution with the
Minnesota Secretary of State, the Company shall cease to carry on its business,
except insofar as may be necessary for the winding up of its business, but its
separate existence shall continue until a certificate of termination has been
issued by the Secretary of State or until a decree dissolving the Company has
been entered by a court of competent jurisdiction.


 


10.2.       Dissolution Avoidance.


 


(a)           Member Consent to
Continuation of the Company.  The Company shall not be dissolved and is not
required to be wound up by reason of the occurrence of an event that terminates
the continued membership of a Member in the Company (including the events
enumerated in Section 322B.80, Subd. 1, clause (5) of the Act) if (i) either
there are at least two remaining Members or a new Member is admitted as
provided in Section 3228.11 of the Act, and (ii) the existence and
business of the Company is continued by the consent of all the remaining
Members, no later than ninety (90) days after the termination of the continued
membership.  Pursuant to Section 9.1(c),
the consent to a proposed Assignment of Governance Rights may also constitute
the consent necessary to avoid the dissolution of the Company.  Notwithstanding anything to the contrary, a
new Member may not be appointed during the term of Cargill’s lease of the
Facility or any extension thereof without Cargill’s prior written consent.


 


(b)           Status of Member Whose
Membership Interest is Terminated.  If dissolution is avoided by the consent of
Members pursuant to subsection (a) of this Section 10.2, then the
Member whose Membership Interest has terminated shall lose all Governance
Rights and will be considered merely an assignee of the Financial Rights owned
before the termination of such Member’s Membership Interest.  In such event, Schedule A shall be deemed to
be appropriately amended to allocate the Voting Interest of the Member whose
Membership Interest is terminated among the remaining Members in proportion to
the remaining Members’ existing Voting Interests.


 


(c)           No Obligation to Purchase
Membership Interest of Terminated Member.  If dissolution is avoided by the consent of
Members pursuant to subsection (a) of this Section 10.2, neither the
Company nor the remaining Members shall be obligated to purchase the Membership
Interest of the Member whose Membership Interest was terminated.


 


(d)           Agreement Not to Retire or
Resign.  Each Member agrees not to
retire or resign from the Company without the prior written consent of all the
other Members.  If any Member retires or
resigns from the Company in contravention of this Section 10.2(d), such 


 


17

















 


Member
shall be liable to the Company and the remaining Members for any damages caused
by such retirement or resignation.


 


10.3.       Distributions Upon
Liquidation.  Upon
liquidation, the business of the Company shall be wound up, the Board of
Governors shall take full account of the Company assets and liabilities, and
all assets shall be liquidated as promptly as is consistent with obtaining the
fair value thereof.  If any assets are
not sold, gain or loss shall be allocated to the Members in accordance with Article V
as if such assets had been sold at their fair market value at the time of the
liquidation.  If any assets are
distributed to a Member, rather than sold, the Distribution shall be treated as
a Distribution equal to the fair market value of the assets at the time of the
liquidation.  The assets of the Company
shall be applied and distributed in the following order of priority:


 


(a)           First, to the payment of all
debts and liabilities of the Company, including all fees due the Governors and
Managers, and including any loans or advances that may have been made by the
Members to the Company, in the order of priority as provided by law;


 


(b)           Second, to the establishment
of any reserves deemed necessary by the Managers or the person winding up the
affairs of the Company for any contingent liabilities or obligations of the
Company;


 


(c)           Third, to the Members,
ratably in proportion to the credit balances in their respective Capital
Accounts, in an amount equal to the aggregate credit balances in the Capital
Accounts after and including all allocations to the Members under Article V,
including the allocation of any income, gain or loss from the sale, exchange or
other disposition (including a deemed sale pursuant to this Section 10.3)
of the Company’s assets.


 


ARTICLE XI

NEW MEMBERS BOUND BY AGREEMENT


 


Any
Person who is admitted to the Company as a Member shall be subject to and bound
by all the provisions of this Agreement as if originally a party to this
Agreement.  Such Person shall execute and
acknowledge all documents and instruments, in form and substance satisfactory
to the Board of Governors, as the Board of Governors shall deem necessary or
advisable to effect such admission and to confirm the agreement of the Person
being admitted to be bound by all the terms and provisions of this
Agreement.  Such Person shall pay all
reasonable expenses in connection with such admission as a Member, including
without limitation legal fees and costs of preparation of any amendment to or
restatement of this Agreement, if necessary or desirable in connection
therewith.


 


ARTICLE XII

REMEDIES


 


The
Members and the Company agree that in the event of a breach of this Agreement,
the non-breaching party or parties shall be entitled to the remedies of
specific performance and injunctive relief, except where prohibited by the Act,
and that such remedies shall be in addition to any other remedies available at
law or in equity with the pursuit of any one or more remedies 


 


18

















 


not
being a bar to the pursuit of other remedies which may be available.  The Members and the Company further agree
that the breaching party or parties shall pay all reasonable costs, expenses,
and attorneys’ fees incurred by the non-breaching party or parties in pursuing
their remedies for a breach of this Agreement.


 


ARTICLE XIII

MISCELLANEOUS


 


13.1.       Entire Agreement.  This Agreement and the agreements identified
in Section 2.1 constitute the entire agreement among the parties and
supersede any prior agreement or understanding among them with respect to the
subject matter hereof and thereof, including the original Member Control
Agreement dated October 1, 1994 and the Amendments thereto.


 


13.2.       Amendment .  This Agreement may not be modified, amended,
or supplemented, except by a writing signed by all of the parties to this
Agreement who are then Members of the Company.


 


13.3.       Severability.  If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under the present or future laws
effective during the term of this Agreement, such provision will be fully
severable; this Agreement will be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part of this
Agreement; and the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement.  Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there will be added automatically as a
part of this Agreement a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and be legal, valid, and
enforceable.


 


13.4.       Consent and Waiver.  No consent under and no waiver of any
provision of this Agreement on any one occasion shall constitute a consent
under or waiver of any other provision on said occasion or on any other
occasion, nor shall it constitute a consent under or waiver of the consented to
or waived provision on any other occasion. 
No consent or waiver shall be enforceable unless it is in writing and
signed by the Member against whom such consent or waiver is sought to be
enforced.


 


13.5.       No Third Party Beneficiary.  This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns, and no other Person will have any rights,
interest, or claims hereunder or be entitled to any benefits under or on
account of this Agreement as a third party beneficiary or otherwise, except
that the Company shall have standing to bring an action to recover damages
provided for by the Act or to seek remedies otherwise provided by law in the
event of a breach or threatened breach of this Agreement.


 


13.6.       Notices.  All notices, offers, demands, or other
communications required or permitted under this Agreement shall be in writing,
signed by the Person giving the same. 
Notice shall be treated as given when personally received or (except in
the event of a mail strike) three business days after being sent by certified
or registered mail, postage prepaid, return receipt requested, to a Member at
the address as shown from time to time on the records of the 


 


19

















 


Company.  Any Member may specify a different address by
written notice to the Board of Governors.


 


13.7.       Binding Effect.  Except as herein otherwise specifically
provided, this Agreement shall be binding upon and inure to the benefit of the
parties and their legal representatives, heirs, administrators, executors,
successors and assigns.


 


13.8.       Necessary Instruments and
Acts.  The Members covenant and agree
that they shall execute any further instruments and shall perform any acts
which are or may become necessary to effectuate and to carry out the terms and
conditions of this Agreement.


 


13.9.       Number and Gender.  Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall
include the singular and the plural and pronouns stated in either the
masculine, the feminine or the neuter gender shall include the masculine,
feminine and neuter.


 


13.10.     Interpretation.  All references herein to Articles, Sections
and subsections refer to Articles, Sections and subsections of this
Agreement.  All Article, Section and
subsection headings are for reference purposes only and shall not affect the
interpretation of this Agreement.


 


13.11.     Counterparts.  This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one agreement
binding on all Members.  Each Member
shall become bound by this Agreement immediately upon signing any counterpart, independently
of the signature of any other Member.


 


13.12.     Governing Law.  This Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Minnesota.


 


IN
WITNESS WHEREOF, the undersigned have executed this Amended and Restated Member
Control Agreement as of the day and year first above written.


 


	
   

  	
  GOLDEN
  GROWERS COOPERATIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Harvey A. Pyle

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:
  Chairperson

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas S. Astrup

  
	
   

  	
   

  
	
   

  	
  Its:
  Chief Financial Officer

  



 


20

















 


SCHEDULE A


 


The undersigned Members of ProGold Limited
Liability Company, hereby agree and acknowledge that the following information
applies for all purposes to the ProGold Limited Liability Company Amended and
Restated Member Control Agreement dated effective September 1, 2009; this
Schedule A to be effective as of the date hereof.


 


	
  Member

  and

  Address

  	
   

  	
  Form of

  Contribution

  	
   

  	
  Agreed

  Value of

  Contribution

  	
   

  	
  Percentage

  Interest

  (Financial

  Rights)

  	
   

  	
  Voting

  Interest (Governance

  Rights)

  	
   

  
	
  Golden
  Growers Cooperative 

  101 North Tenth Street 

  Suite 110 

  P.O. Box 2484 

  Fargo, North Dakota 58102

  	
   

  	
  Cash

  	
   

  	
  $

  	
  51,156,000

  	
   

  	
  49

  	
  %

  	
  49

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  American
  Crystal Sugar 

  Company 

  101 Third Street North 

  Moorhead, Minnesota 56560

  	
   

  	
  Cash

  	
   

  	
  $

  	
  53,244,000

  	
  *

  	
  51

  	
  %

  	
  51

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
   

  	
   

  	
  $

  	
  104,400,000

  	
   

  	
  100

  	
  %

  	
  100

  	
  %

  



 


 


	
  Dated:
  September 1, 2009.

  	
  GOLDEN
  GROWERS COOPERATIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Harvey A. Pyle

  
	
   

  	
  Its:
  Chairperson

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas S. Astrup

  
	
   

  	
   

  	
  Its:
  Chief Financial Officer

  



 






*Includes
an initial contribution of $48,024,000 plus the value of the initial
contribution of $5,220,000 made by Minn-Dak Farmers Cooperative in exchange for
a 5% interest in ProGold that was acquired by American Crystal on April 23,
2003.