Exhibit
10.3


 


 


AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT


 


OF


 


SOLAE
HOLDINGS LLC


 


DATED
AS OF APRIL 1, 2003


 

















 


TABLE OF CONTENTS


 


	
  SECTION
  1.

  	
  The
  Company

  	
   

  
	
   

  	
  SECTION 1.1.

  	
  Definitions

  
	
   

  	
  SECTION 1.2

  	
  Formation

  
	
   

  	
  SECTION
  1.3

  	
  Name

  
	
   

  	
  SECTION 1.4

  	
  Purpose; Powers

  
	
   

  	
  SECTION 1.5

  	
  Registered Office

  
	
   

  	
  SECTION
  1.6

  	
  Term

  
	
   

  	
  SECTION 1.7

  	
  Filings; Agent
  for Service of Process

  
	
   

  	
  SECTION 1.8

  	
  Title to Property

  
	
   

  	
  SECTION 1.9

  	
  Payments of
  Individual Obligations

  
	
   

  	
  SECTION 1.10

  	
  Independent Activities;
  Transactions with Affiliates

  
	
   

  
	
  SECTION 2.

  	
  Members’
  Capital Contributions

  	
   

  
	
   

  	
  SECTION 2.1

  	
  Initial Capital
  Contributions

  
	
   

  	
  SECTION
  2.2

  	
  Central
  Soya Contribution Agreement/DuPont Indemnity Agreement

  
	
   

  	
  SECTION 2.3

  	
  Additional Capital
  Contributions

  
	
   

  
	
  SECTION
  3.

  	
  Allocations

  	
   

  
	
   

  	
  SECTION
  3.1

  	
  Profits

  
	
   

  	
  SECTION
  3.2

  	
  Losses

  
	
   

  	
  SECTION 3.3

  	
  Special Allocations

  
	
   

  	
  SECTION 3.4

  	
  Curative Allocations

  
	
   

  	
  SECTION 3.5

  	
  Loss Limitation

  
	
   

  	
  SECTION 3.6

  	
  Other Allocation Rules

  
	
   

  	
  SECTION 3.7

  	
  Tax Allocations: Code Section 704(c)

  
	
   

  
	
  SECTION
  4.

  	
  Distributions

  	
   

  
	
   

  	
  SECTION 4.1

  	
  Net Cash Flow

  
	
   

  	
  SECTION 4.2

  	
  Amounts Withheld

  
	
   

  	
  SECTION 4.3

  	
  Limitations on
  Distributions

  
	
   

  
	
  SECTION 5.

  	
  Role of Members

  	
   

  
	
   

  	
  SECTION 5.1

  	
  Rights or Powers

  
	
   

  	
  SECTION 5.2

  	
  Voting Rights

  
	
   

  	
  SECTION 5.3

  	
  Member Vote and Consent

  
	
   

  	
  SECTION 5.4

  	
  Unanimous Member Consent

  
	
   

  	
  SECTION 5.5

  	
  Withdrawal/Resignation

  
	
   

  	
  SECTION 5.6

  	
  Member Compensation

  
	
   

  	
  SECTION 5.7

  	
  Members Liability

  
	
   

  	
  SECTION 5.8

  	
  Partition

  
	
   

  	
  SECTION 5.9

  	
  Confidentiality

  
						



 


i

















 


	
   

  	
  SECTION 5.10

  	
  Transactions between a Member and the
  Company

  
	
   

  	
  SECTION 5.11

  	
  Other Instruments

  
	
   

  
	
  SECTION
  6.

  	
  Management

  
	
   

  	
  SECTION
  6.1

  	
  Managers;
  Board of Managers

  
	
   

  	
  SECTION 6.2

  	
  Meetings of the
  Board of Managers

  
	
   

  	
  SECTION 6.3

  	
  Board of Managers Powers

  
	
   

  	
  SECTION
  6.4

  	
  Duties
  and Obligations of the Board of Managers

  
	
   

  
	
  SECTION 7.

  	
  Protection of Members,
  Managers and Officers

  
	
   

  	
  SECTION 7.1

  	
  Protected Party

  
	
   

  	
  SECTION 7.2

  	
  General Protection

  
	
   

  	
  SECTION 7.3

  	
  Indemnification and
  Insurance

  
	
   

  	
  SECTION 7.4

  	
  Amendments to this
  Section 7

  
	
   

  
	
  SECTION 8.

  	
  Representations and
  Warranties

  
	
   

  	
  SECTION
  8.1

  	
  In
  General

  
	
   

  	
  SECTION 8.2

  	
  Representations and
  Warranties

  
	
   

  
	
  SECTION 9.

  	
  Accounting, Books and
  Records

  
	
   

  	
  SECTION
  9.1

  	
  Accounting,
  Books and Records

  
	
   

  	
  SECTION 9.2

  	
  Reports; Audits

  
	
   

  	
  SECTION 9.3

  	
  Tax Matters

  
	
   

  
	
  SECTION
  10.

  	
  Amendments

  
	
   

  	
  SECTION
  10.1

  	
  Amendments

  
	
   

  
	
  SECTION
  11.

  	
  Transfers

  
	
   

  	
  SECTION 11.1

  	
  Restrictions on Transfers

  
	
   

  	
  SECTION 11.2

  	
  Permitted Transfers

  
	
   

  	
  SECTION 11.3

  	
  Conditions to Permitted Transfers

  
	
   

  	
  SECTION 11.4

  	
  Right of First Offer; Certain
  Transfers; Buy-Out Interest and Change of Control

  
	
   

  	
  SECTION 11.5

  	
  Prohibited Transfers

  
	
   

  	
  SECTION 11.6

  	
  Rights of Unadmitted
  Assignees

  
	
   

  	
  SECTION 11.7

  	
  Admission of
  Substituted Members

  
	
   

  	
  SECTION
  11.8

  	
  Representations
  Regarding Transfers; Legend

  
	
   

  	
  SECTION
  11.9

  	
  Distributions
  and Allocations in Respect of Transferred Membership Interest

  
	
   

  	
  SECTION 11.10

  	
  DuPont Transfers;
  Certain Rights

  
	
   

  
	
  SECTION 12.

  	
  Dissolution and Winding Up

  
	
   

  	
  SECTION 12.1

  	
  Dissolution Events

  
	
   

  	
  SECTION 12.2

  	
  Winding Up

  
					



 


ii

















 


	
   

  	
  SECTION
  12.3

  	
  Compliance
  with Certain Requirements of Regulations; Deficit Capital Accounts

  
	
   

  	
  SECTION 12.4

  	
  Deemed
  Distribution and Recontribution

  
	
   

  	
  SECTION 12.5

  	
  Rights of Members

  
	
   

  	
  SECTION 12.6

  	
  Notice of
  Dissolution/Termination

  
	
   

  	
  SECTION 12.7

  	
  Allocations
  during Period of Liquidation

  
	
   

  	
  SECTION 12.8

  	
  Character of
  Liquidating Distributions

  
	
   

  	
  SECTION 12.9

  	
  The Liquidator

  
	
   

  	
  SECTION 12.10

  	
  Form of Liquidating
  Distributions

  
	
   

  
	
  SECTION 13.

  	
  Miscellaneous

  
	
   

  	
  SECTION
  13.1

  	
  Costs

  
	
   

  	
  SECTION
  13.2

  	
  Notices

  
	
   

  	
  SECTION 13.3

  	
  Binding Effect

  
	
   

  	
  SECTION 13.4

  	
  Construction

  
	
   

  	
  SECTION
  13.5

  	
  Time

  
	
   

  	
  SECTION
  13.6

  	
  Headings

  
	
   

  	
  SECTION 13.7

  	
  Severability

  
	
   

  	
  SECTION 13.8

  	
  Incorporation by Reference

  
	
   

  	
  SECTION 13.9

  	
  Variation of Terms

  
	
   

  	
  SECTION 13.10

  	
  Governing Law

  
	
   

  	
  SECTION 13.11

  	
  Waiver of Jury Trial

  
	
   

  	
  SECTION 13.12

  	
  Counterpart Execution

  
	
   

  	
  SECTION 13.13

  	
  Specific Performance

  
	
   

  	
  SECTION
  13.14

  	
  Consent
  to Jurisdiction and Service of Process

  
	
   

  
	
  SCHEDULES

  
	
   

  
	
  Schedule
  1

  	
  Certain Grades of Lecithins

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule
  2

  	
  Certain Services

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
  Exhibit
  A

  	
  Members

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit
  B

  	
  Managers

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit
  C

  	
  Wilmington Forms
  Statement Package

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit
  D

  	
  Prohibited Transferees

  	
   

  
						



 


iii

















 


This AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT of Solae Holdings LLC, a Delaware limited
liability company, is entered into as of the Effective Time, by and among E.I.
du Pont de Nemours and Company, a Delaware corporation, Central Soya Company,
Inc., an Indiana corporation  and
Solae Holdings LLC.  Each of DuPont and
Central Soya is identified as a Member on Exhibit A attached hereto and made a
part hereof and has caused a counterpart of this Agreement to be executed as a
Member pursuant to the provisions of the Act.


 


WHEREAS, DuPont PTI was
converted into the Company upon the execution and filing in the Office of the
Secretary of State of the State of Delaware of the Certificate of Conversion on
March 28, 2003;


 


WHEREAS, DuPont, acting
as the sole member of the Company, executed and filed in the Office of the
Secretary of State for the State of Delaware the Certificate on March 28, 2003;


 


WHEREAS, DuPont, acting
as the sole member of the Company, entered into an Agreement of Limited
Liability Company for the Company on March 28, 2003 (the “Original Agreement”);


 


WHEREAS, DuPont desires
to amend and restate the Original Agreement in its entirety as provided in this
Agreement to, inter  alia, admit Central Soya as a Member of the
Company; and


 


WHEREAS, Central Soya
desires to become a Member of the Company and contribute the Contributed
Property to the Company in exchange for its initial Membership Interest in the
Company pursuant to the Central Soya Contribution Agreement.


 


NOW THEREFORE, DuPont and
Central Soya as the Members of the Company hereby declare this Agreement to be
the Amended and Restated Limited Liability Company Agreement of the Company and
agree as follows:


 


Section 1:  The
Company


 


1.1           Definitions.


 


Capitalized words and
phrases used in this Agreement shall have the following meanings:


 


“Accepting Offerees”
shall have the meaning set forth in Section 11.4(c) hereof.


 


“Accounting Policies”
shall have the meaning set forth in Section 6.1(j)(iv) hereof.


 


1

















 


“Act” means the Delaware
Limited Liability Company Act, 6 Del C. § 18-101, et seq., as amended from
time to time (or any corresponding provisions of succeeding law).


 


“Additional Capital
Contributions” means, with respect to each Member, the additional Capital
Contributions made to the Company by such Member pursuant to Section 2.3 hereof,
which shall be made in cash only, unless otherwise agreed to by the
Members.  In the event Membership
Interests are transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Additional Capital Contributions of the
transferor to the extent they relate to the transferred Membership Interests.


 


“Adjusted Capital Account
Deficit” means, with respect to any Member, the deficit balance, if any, in
such Member’s Capital Account as of the end of the relevant Allocation Year,
after giving effect to the following adjustments:


 


(i)            Credit to such Capital Account any
amounts which such Member is deemed to be obligated to restore pursuant to the
penultimate sentences in Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the
Regulations; and


 


(ii)           Debit to such Capital Account the
items described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5),
and 1.704-1(b)(2)(ii)(d)(6) of the Regulations.


 


The foregoing definition of Adjusted Capital Account
Deficit is intended to comply with the provisions of Section
1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.


 


“Advisor” shall have the
meaning set forth in Section 6.1(c) hereof.


 


“Affected Member” shall
have the meaning set forth in Section 3.3(v) hereof.


 


“Affiliate” means, with
respect to any Person (i) any Person directly or indirectly controlling,
controlled by or under common control with such Person (ii) any officer,
director, general partner, member or trustee of such Person or (iii) any Person
who is an officer, director, general partner, member or trustee of any Person
described in clauses (i) or (ii) of this sentence; provided, however, that for
purposes of this Agreement and the Related Agreements (including, but not
limited to, the Covenant Not to Compete), none of Central Soya, Bunge Limited
or their transferees shall be deemed to be an Affiliate of DuPont; and
provided, further, that in the case of clause (i) with respect to the use of
the term Affiliate in Section 11 hereof as it relates to DuPont or Central
Soya, DuPont or Bunge Limited (as the case may be) retains, directly or
indirectly, economic exposure to no less than seventy percent (70%) of the
equity of such Person.  For purposes of
this definition, the terms “control”, “controlling”, “controlled by” or “under
common control with” shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.


 


“Agreement” means this
Amended and Restated Limited Liability Company Agreement of Solae Holdings LLC
including all Exhibits and Schedules attached hereto, as


 


2

















 


amended from time to time.  Words such as “herein,” “hereinafter,” “hereof,” “hereto” and
“hereunder” refer to this Agreement as a whole, unless the context otherwise
requires.


 


“Allocation Year” means
(i) the period commencing on the Effective Time and ending on December 31, 2003,
(ii) any subsequent twelve (12) month period commencing on January 1 and ending
on December 31 or (iii) any portion of the period described in clauses (i) or
(ii) for which the Company is required to allocate Profits, Losses and other
items of Company income, gain, loss or deduction pursuant to Section 3 hereof.


 


“Bankruptcy” means, with
respect to any Person, a Voluntary Bankruptcy or an Involuntary
Bankruptcy.  A “Voluntary Bankruptcy”
means, with respect to any Person (i) the inability of such Person generally to
pay its debts as such debts become due, or an admission in writing by such
Person of its inability to pay its debts generally or a general assignment by
such Person for the benefit of creditors, (ii) the filing of any petition or
answer by such Person seeking to adjudicate itself as bankrupt or insolvent, or
seeking for itself any liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of such Person or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking, consenting to, or acquiescing in the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
official for such Person or for any substantial part of its property or (iii)
corporate action taken by such Person to authorize any of the actions set forth
above.  An “Involuntary Bankruptcy”
means, with respect to any Person, without the consent or acquiescence of such
Person, the entering of an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other
similar relief under any present or future bankruptcy, insolvency or similar
statute, law or regulation, or the filing of any such petition against such
Person which petition shall not be dismissed within ninety (90) days, or
without the consent or acquiescence of such Person, the entering of an order
appointing a trustee, custodian, receiver or liquidator of such Person or of
all or any substantial part of the property of such Person which order shall
not be dismissed within ninety (90) days. 
This definition shall supersede the events set forth in Section 18-304
of the Act.


 


“Biotech Alliance
Agreement” means that certain Biotechnology Alliance Agreement by and between
DuPont and Bunge Limited dated as of April 1, 2003.


 


“Board of Managers” shall
have the meaning set forth in Section 6.1(a) hereof.


 


“Bunge Limited” means
Bunge Limited, a Bermuda corporation and the indirect owner of at least
ninety-seven percent (97%) of all of the issued and outstanding capital stock
of Central Soya.


 


“Bunge Limited Guarantee”
means the guarantee agreement of Bunge Limited of an even date herewith
guaranteeing Central Soya’s performance under this Agreement and the Related
Agreements.


 


“Business” means the
current businesses of PTI (immediately prior to the Conversion) and Bunge
Limited to be included in the Company relating to operating, managing,


 


3

















 


licensing, marketing and/or developing a soy protein
ingredients and soy polymers business to manufacture, market and sell, alone or
in combination, soy products such as soy protein isolates, soy concentrates,
textured soy protein, soy flour, soy lecithin, soy isoflavones and soy meal
(but only soy meal produced at those certain existing facilities to be operated
by Solae, LLC located at Gibson City, IL and in China (the “Facilities”)),  and high oleic soy oil (but only to the
extent required for Solae, LLC to meet its contractual obligations to
Environmental Lubricants Manufacturing, Inc., an Iowa corporation), for food
ingredients, animal feed from soy meal protein produced at the Facilities,
dietary supplements, pharmaceuticals, and soy polymers for various industrial
applications (with the exception of packaging applications and printable
coatings) and soy protein products and soy polymers for the personal care
market in collaboration with DuPont or DuPont’s Affiliates, and any such other
lawful business or activity approved by the Members and permissible under the
Act.  For the avoidance of doubt, the
business of manufacturing, marketing and selling fluid soy milk in North
America and soy meal (with the exception of soy meal produced at the
Facilities) is excluded from the definition of “Business”.  DuPont and Central Soya acknowledge that
Bunge Limited and its Affiliates currently operate oilseed processing and
soybean meal and soybean oil businesses that are not part of the Contributed
Property, Solae Brasil Holdings or Solae Brasil (the “Excluded Bunge
Businesses”), and, except as specifically set forth above for soy meal, the
definition of “Business” is not intended to cover the Excluded Bunge Businesses.  DuPont and Central Soya further acknowledge
that DuPont and its Affiliates currently operate seed research and production
businesses which are not part of the current soy ingredient business of PTI to
be included in the Company (the “Excluded DuPont Businesses”) and the
definition of “Business” is not intended to cover the Excluded DuPont
Businesses.  The Excluded DuPont
Businesses shall include all activities related to commodity soybean seed
research, production and sales.  For
purposes of this definition, commodity soybean seeds are soybean seeds that do
not have a trait produced through biotechnology or induced mutagenesis that
modifies seed protein, oil, starch or isoflavone content or composition.  Further, DuPont and Central Soya do not
intend for this definition of “Business” to preclude (i) either DuPont or Bunge
Limited from operating, developing and/or expanding businesses that are not
included in this definition of “Business” or from incorporating one or more of
the types of products included in the Business into other products not included
in the Business, (ii) Bunge Limited and its Affiliates from selling certain
grades of lecithins as specified in Schedule 1 attached hereto and made
a part hereof, (iii) actions permitted under the Biotech Alliance Agreement and
the Research License, (iv) Solae Brasil Holdings or Solae Brasil from operating
their businesses and assets during the time period commencing on the date
hereof and ending on the earlier of the Closing Date (as defined in the Share
Purchase Agreement) or the date that Solae Brasil, Bunge Limited and the
Company enter into a toll manufacturing agreement as provided in Section 6.05
of the Share Purchase Agreement (and thereafter as provided in such toll
manufacturing agreement) or (v) Bunge or its Affiliates from manufacturing,
marketing and selling soybean meal and high oleic soy oil.


 


“Business Day” means a
day of the year on which banks are not required or authorized to close in New
York, New York.


 


“Buy-Out Interest” shall
have the meaning set forth in Section 11.4(g) hereof.


 


“Buy-Out Member” shall
have the meaning set forth in Section 11.4(g) hereof.


 


4

















 


“Capital Account” means,
with respect to any Member, the Capital Account maintained for such Member in
accordance with the following provisions:


 


(i)            To each Member’s Capital Account
there shall be credited (A) such Member’s Capital Contributions, (B) such
Member’s distributive share of Profits and any items in the nature of income or
gain which are specially allocated pursuant to Section 3.3 or Section 3.4
hereof, and (C) the amount of any Company liabilities assumed by such Member or
which are secured by any Property distributed to such Member.  The principal amount of a promissory note
which is not readily traded on an established securities market and which is
contributed to the Company by the maker of the note (or a Member related to the
maker of the note within the meaning of Regulations Section 1.704-1
(b)(2)(ii)(c)) shall not be included in the Capital Account of any Member until
the Company makes a taxable disposition of the note or until (and to the
extent) principal payments are made on the note, all in accordance with
Regulations Section 1.704-1(b)(2)(iv)(d)(2);


 


(ii)           To each Member’s Capital Account
there shall be debited (A) the amount of money and the Gross Asset Value of any
Property distributed to such Member pursuant to any provision of this
Agreement, (B) such Member’s distributive share of Losses and any items in the nature
of expenses or losses which are specially allocated pursuant to Section 3.3 or
Section 3.4 hereof, and (C) the amount of any liabilities of such Member
assumed by the Company or which are secured by any Property contributed by such
Member to the Company; provided, however, that no debit shall be made under
this subsection (C) with respect to the assumption of any liability by the
Company in connection with any Member’s initial Capital Contribution pursuant
to Section 2.1 hereof or with respect to the assumption of any liability by the
Company in connection with the Conversion;


 


(iii)          In the event a Membership Interest is
transferred in accordance with the terms of this Agreement, the transferee
shall succeed to the Capital Account of the transferor to the extent it relates
to the transferred Membership Interest; and


 


(iv)          In determining the amount of any
liability for purposes of subparagraphs (i) and (ii) above there shall be taken
into account Code Section 752(c) and any other applicable provisions of the
Code and Regulations.


 


The foregoing provisions
and the other provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Regulations Section 1.704-1 (b),
and shall be interpreted and applied in a manner consistent with such
Regulations.  In the event the Board of
Managers shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto (including, without limitation,
debits or credits relating to liabilities which are secured by contributed or
distributed property or which are assumed by the Company or any Members), are
computed in order to comply with such Regulations, the Board of Managers may
make such modification, provided that it is not likely to have a material
effect on the amounts distributed to any Person pursuant to Section 12 hereof


 


5

















 


upon the dissolution of the Company.  The Board of Managers also shall (i) make
any adjustments that are necessary or appropriate to maintain equality between
the Capital Accounts of the Members and the amount of capital reflected on the
Company’s balance sheet, as computed for book purposes, in accordance with
Regulations Section 1.704-1 (b)(2)(iv)(q), and (ii) make any appropriate
modifications in the event unanticipated events might otherwise cause this
Agreement not to comply with Regulations Section 1.704-1(b).


 


“Capital Call” shall have
the meaning set forth in Section 2.3(b) hereof.


 


“Capital Contributions”
means, with respect to any Member, the amount of money and the initial Gross
Asset Value of any Property (other than money) contributed to the Company with
respect to the Membership Interest in the Company held or purchased by such
Member, including Additional Capital Contributions.


 


“Central Soya” means
Central Soya Company, Inc, an Indiana corporation and an indirect subsidiary of
Bunge Limited.


 


“Central Soya Adjustment
Amount” means any Adjustment Amount as defined in the Central Soya Contribution
Agreement.


 


“Central Soya Breach”
means any Breach as defined in the Central Soya Contribution Agreement.


 


“Central Soya
Contribution Agreement” means the Contribution Agreement of even date herewith
between Central Soya and the Company pursuant to which Central Soya shall
contribute the Contributed Property to the Company in exchange for its initial
Membership Interest in the Company.


 


“Central Soya Excluded
Liability” means any Excluded Liability as defined in the Central Soya
Contribution Agreement.


 


“Central Soya Foreign Tax
Assessment” means any Foreign Tax Assessment as defined in the Central Soya
Contribution Agreement.


 


“Central Soya Foreign Tax
Refund” means any Foreign Tax Refund as defined in the Central Soya
Contribution Agreement.


 


“Central Soya Grace
Period Option” shall have the meaning set forth in Section 2.3(c) hereof.


 


“Central Soya Purchase
Option” shall have the meaning set forth in Section 2.3(c) hereof.


 


“Central Soya Transfer
Tax Assessment” means any Transfer Tax Assessment as defined in the Central
Soya Contribution Agreement.


 


6

















 


“Central Soya US Tax
Assessment” means any US Tax Assessment as defined in the Central Soya
Contribution Agreement.


 


“Central Soya US Tax
Refund” means any US Tax Refund as defined in the Central Soya Contribution
Agreement.


 


“Certificate” means the
certificate of formation of the Company filed with the Secretary of State of
the State of Delaware pursuant to the Act to form the Company, as originally
executed and amended, modified, supplemented or restated from time to time, as
the context requires.


 


“Certificate of
Cancellation” means a certificate of cancellation filed in accordance with 6
Del. C. § 18-203.


 


“Certificate of
Conversion” means the certificate of conversion filed in accordance with 6 Del.
C. § 18-214 and 8 Del. C. § 266 converting DuPont PTI into the
Company.


 


“Change of Control”
means, with respect to any Member, any transaction or series of transactions
(as a result of a tender offer, merger, consolidation or otherwise) that
results in, or that is in  connection with, any Person (other than an
Affiliate of such Member), including a “group” (within the meaning of Section
13(d)(3) of the Exchange Act) that includes that Person, acquiring “beneficial
ownership” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of forty percent (40%) or more of the aggregate voting power of all
classes of stock, voting securities or other indicia of ownership of such
Member or any Person (other than an Affiliate of such Member) that possesses
“beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of forty percent (40%) or more of the aggregate voting
power of all classes of stock, voting securities or other indicia of ownership
of such Member.


 


“Change of Control
Member” shall have the meaning set forth in Section 11.4(i) hereof.


 


“Chairman” shall have the
meaning set forth in Section 6.1(f) hereof.


 


“Chief Executive Officer”
shall have the meaning set forth in Section 6.1(k)(ii) hereof.


 


“Chief Financial Officer”
shall have the meaning set forth in Section 6.1(k)(iii) hereof.


 


“Code” means the United
States Internal Revenue Code of 1986, as amended from time to time.


 


“Company” means Solae
Holdings LLC, the limited liability company continued pursuant to this
Agreement and the Certificate.


 


7

















 


“Company Minimum Gain”
shall have the meaning ascribed thereto in Regulations Sections 1.704-2(b)(2)
and 1.704-2(i)(2).


 


“Contributed Property”
means the assets and stock contributed by Central Soya to the Company pursuant
to the Central Soya Contribution Agreement.


 


“Conversion” shall have
the meaning set forth in Section 1.2 hereof.


 


“Conveyance Documents”
means the Conveyance Documents as defined in the Central Soya Contribution
Agreement.


 


“Covenant Not to Compete”
means the Covenant Not to Compete Agreement of an even date herewith entered
into by the Company, DuPont and Bunge Limited.


 


“Damages” means any and
all liabilities, obligations, losses, direct damages, penalties, fines,
assessments (whether criminal or civil), claims, actions, injuries, suits,
judgments, costs, expenses (including, without limitation, reasonable legal
fees and expenses and costs of litigation), disbursements or demands
whatsoever, howsoever arising.


 


“Deadlock” shall have the
meaning set forth in Section 6.1(k)(i) hereof.


 


“Deadlock Matter” shall
have the meaning set forth in Section 6.1(k)(i) hereof.


 


“Debt” means (i) any
indebtedness for borrowed money or the deferred purchase price of property as
evidenced by a note, bonds, or other instruments, (ii) obligations as lessee
under capital leases, (iii) obligations secured by any mortgage, pledge,
security interest, encumbrance, lien or charge of any kind existing on any
asset owned or held by the Company whether or not the Company has assumed or
become liable for the obligations secured thereby, (iv) any obligation under
any interest rate swap agreement, (v) accounts payable and (vi) obligations
under direct or indirect guarantees of (including obligations (contingent or
otherwise) to assure a creditor against loss in respect of) indebtedness or
obligations of the kinds referred to in clauses (i), (ii), (iii), (iv) and (v),
above; provided that Debt shall not include obligations in respect of any
accounts payable that are incurred in the ordinary course of the Company’s
business and are not delinquent or are being contested in good faith by
appropriate proceedings.


 


“Depreciation” means, for
each Allocation Year, an amount equal to the depreciation, amortization, or
other cost recovery deduction allowable with respect to an asset for such
Allocation Year, except that if the Gross Asset Value of an asset differs from
its adjusted basis for federal income tax purposes at the beginning of such
Allocation Year, Depreciation shall be an amount which bears the same ratio to
such beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such Allocation Year bears
to such beginning adjusted tax basis; provided, however, that if the adjusted
basis for federal income tax purposes of an asset at the beginning of such
Allocation Year is zero, Depreciation shall be determined with reference to
such beginning Gross Asset Value using any reasonable method selected by the
Board of Managers.


 


8

















 


“Dissolution Event” shall
have the meaning set forth in Section 12.1(a) hereof.


 


“DuPont” means E.I. du
Pont de Nemours and Company, a Delaware corporation, and its successors and
permitted assigns.


 


“DuPont Adjustment
Amount” means any Assumed Liability Difference as defined in the DuPont
Indemnity Agreement.


 


“DuPont Breach” means any
Breach as defined in the DuPont Indemnity Agreement.


 


“DuPont Excluded
Liability” means any Excluded Liability as defined in the DuPont Indemnity
Agreement.


 


“DuPont Foreign Tax
Assessment” means any Foreign Tax Assessment as defined in the DuPont Indemnity
Agreement.


 


“DuPont Foreign Tax
Refund” means any Foreign Tax Refund as defined in the DuPont Indemnity
Agreement.


 


“DuPont Indemnity
Agreement” means the indemnity agreement by and between DuPont and the Company
of an even date herewith pursuant to which DuPont makes certain representations
and warranties and agrees to certain indemnification obligations.


 


“DuPont PTI” means DuPont
Protein Technologies International, Inc., a Delaware corporation (the name of
Solae Holdings LLC and type of entity that Solae Holdings LLC was prior to the Conversion)
and a Wholly Owned Affiliate of DuPont.


 


“DuPont Purchase Option”
shall have the meaning set forth in Section 2.3(d) hereof.


 


“DuPont Transfer Tax
Assessment” means any Transfer Tax Assessment as defined in the DuPont
Indemnity Agreement.


 


“DuPont US Tax
Assessment” means any US Tax Assessment as defined in the DuPont Indemnity
Agreement.


 


“DuPont US Tax Refund”
means any US Tax Refund as defined in the DuPont Indemnity Agreement.


 


“Effective Time” means
12:01 A.M. EST on April 1, 2003.


 


“8th Continent
Joint Venture” means 8th Continent, L.L.C., the joint venture
between PTI  and General Mills,
Inc. for the production and sale of soy milk.


 


“Election Notice” shall
have the meaning set forth in Section 11.4(f) hereof.


 


9

















 


“Entities” means the term
“Entities” as defined in the Central Soya Contribution Agreement and the DuPont
Indemnity Agreement and any other direct or indirect subsidiary of the Company.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


“Fair Market Value” means
the value as of any time in the then-current market condition, at which the
Membership Interest in question would change hands between an unrelated
purchaser and seller, each acting at arm’s length and neither under a
compulsion to buy or under a compulsion to sell as determined by an independent
appraiser unanimously selected by the Board of Managers; provided, however,
that in the event the Board of Managers cannot unanimously agree upon an
appraiser, each Member shall select an appraiser and such appraisers shall
collectively select a third appraiser and such third appraiser shall determine
the Fair Market Value in question.


 


“Finance Loans” means the
loans to the Company from DuPont for the Company’s purchase of the Shares and
the acquisition of the minority ownership interest in Solae Brasil Holdings
which Finance Loans shall be at rates not greater than market rates and on
terms reasonable and customary for a similar third party loan.


 


“Firm Offer” shall have
the meaning set forth in Section 11.4(a) hereof.


 


“Fiscal Quarter” means
(i) the period commencing on the Effective Time and ending on June 30, 2003,
(ii) any subsequent three-month period commencing on each of July 1, October 1,
January 1 and April 1 and ending on the last date before the next such date and
(iii) the period commencing on the immediately preceding January 1, April 1,
July 1, or October 1, as the case may be, and ending on the date on which all
Property is distributed to the Members pursuant to Section 12 hereof.


 


“Fiscal Year” means (i)
the period commencing on the Effective Time and ending on December 31, 2003,
(ii) any subsequent twelve-month period commencing on January 1 and ending on
December 31 and (iii) the period commencing on the immediately preceding
January 1 and ending on the date on which all Property is distributed to the
Members pursuant to Section 12 hereof.


 


“Forced Sale Offer” shall
have the meaning set forth in Section 11.4(h) hereto.


 


“Forced Sale Period”
shall have the meaning set forth in Section 11.4(h) hereto.


 


“GAAP” means generally
accepted accounting principles established by the Financial Accounting
Standards Board which govern the public financial reporting of United States
corporations in effect in the United States of America from time to time.


 


“GCL” means the General
Corporation Law of the State of Delaware, as amended.


 


10

















 


“Grace Period” shall have
the meaning set forth in Section 2.3(c) hereof.


 


“Gross Asset Value” means
with respect to any asset, the asset’s adjusted basis for federal income tax
purposes, except as follows:


 


(i)            The initial Gross Asset Value of any
asset contributed by a Member to the Company shall be the fair market value of
such asset at the time it is accepted by the Company, unreduced by any
liability secured by such asset, as determined by the contributing Member and
the Board of Managers provided that the initial Gross Asset Values of the
assets contributed to the Company pursuant to Section 2.1 hereof shall be as
set forth in such section;


 


(ii)           The Gross Asset Values of all Company
assets shall be adjusted to equal their respective fair market values unreduced
by any liabilities secured by such assets (taking Code Section 7701 (g) into
account), as determined by the Board of Managers as of the following times: (A)
the acquisition of an additional Interest in the Company by any new or existing
Member in exchange for more than a de minimis Capital Contribution other
than acquisitions of additional Interests pursuant to the exercise by DuPont of
the DuPont Purchase Option or the exercise by Central Soya of the Central Soya
Purchase Option or the Central Soya Grace Period Option; (B) the distribution
by the Company to a Member of more than a de minimis amount of Property
as consideration for an Interest in the Company; and (C) the liquidation of the
Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
provided that an adjustment described in clauses (A) and (B) of this paragraph
shall be made only if the Board of Managers reasonably determines that such
adjustment is necessary to reflect the relative economic interests of the
Members in the Company;


 


(iii)          The Gross Asset Value of any item of
Company assets distributed to any Member shall be adjusted to equal the fair
market value unreduced by any liabilities secured by such assets (taking Code
Section 7701(g) into account) of such asset on the date of distribution as
determined by the Board of Managers; and


 


(iv)          The Gross Asset Values of Company
assets shall be increased (or decreased) to reflect any adjustments to the
adjusted basis of such assets pursuant to Code Section 734(b) or Code Section
743(b), but only to the extent that such adjustments are taken into account in
determining Capital Accounts pursuant to Regulations Section
1.704-1(b)(2)(iv)(m) and subparagraph (vi) of the definition of “Profits” and
“Losses” or Section 3.3(c) hereof; provided, however, that Gross Asset Values
shall not be adjusted pursuant to this subparagraph (iv) to the extent that an
adjustment pursuant to subparagraph (ii) is required in connection with a
transaction that would otherwise result in an adjustment pursuant to this
subparagraph (iv).


 


If the Gross Asset Value of an asset has been
determined or adjusted pursuant to subparagraph (ii) or (iv), such Gross Asset
Value shall thereafter be adjusted by the Depreciation taken into account with
respect to such asset, for purposes of computing Profits and Losses.


 


11

















 


“Initial Period” means
the time period commencing on the Effective Time and ending at 12:01 a.m.
Eastern Standard time on the day immediately following the date of the third
anniversary of the Effective Time.


 


“Involuntary Bankruptcy”
shall have the meaning set forth in the definition of Bankruptcy.


 


“Issuance Items” shall
have the meaning set forth in Section 3.3(i) hereof.


 


“License Agreement” means
that certain License Agreement by and between DuPont and the Company dated as
of April 1, 2003, pursuant to which DuPont licenses the name “Solae” to the
Company and the Company has the right to sublicense the use of the name “Solae”
to its subsidiaries


 


“Liquidation Period”
shall have the meaning set forth in Section 12.7 hereof.


 


“Liquidator” shall have
the meaning set forth in Section 12.9(a) hereof.


 


“Losses” shall have the
meaning set forth in the definition of “Profits” and “Losses.”


 


“Make-Whole Expense” is
defined in Section 3.3(u).


 


“Make-Whole Period” is
defined in Section 3.3(u).


 


“Manager” means any of
the individuals appointed by the Members to serve and vote on the Board of
Managers and “Managers” means all of such individuals.


 


“Member” means any Person
(i) who is referred to as such on Exhibit A attached hereto and made a part
hereof, or who has become a substituted Member pursuant to the terms of this
Agreement and (ii) who has not ceased to be a Member.  “Members” means all such Persons.


 


“Member Nonrecourse Debt”
shall have the same meaning as the term “Member nonrecourse debt” in Section
1.704-2(b)(4) of the Regulations.


 


“Member Nonrecourse Debt
Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt,
equal to the Company Minimum Gain that would result if such Member Nonrecourse
Debt were treated as a Nonrecourse Liability, determined in accordance with
Section 1.704-2(i)(3) of the Regulations.


 


“Member Nonrecourse
Deductions” has the same meaning as the term “Member nonrecourse deductions” in
Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations.


 


“Membership Interest” or
“Interest” means a Member’s entire ownership interest in the Company, its
Percentage Interest, and the rights related thereto, including the right to
vote


 


12

















 


on, consent to, or otherwise participate in any
decision or action of or by the Members granted pursuant to this Agreement and
the Act.


 


“Net Cash Flow” means all
cash, revenues, and funds received by the Company, including Capital
Contributions, less the sum of the following to the extent paid or set aside by
the Company: (i) all principal and interest payments on indebtedness of the
Company and all other sums paid to lenders; (ii) all cash expenditures incurred
incident to the normal operation of the Company’s business; (iii) such reserves
as the Board of Managers deems reasonably necessary to the proper operation of
the Company’s business; and (iv) such reserves as the Board of Managers
reasonably deems necessary for the Company’s capital requirements, all as
determined by the Board of Managers.


 


“Nonrecourse Deductions”
shall have the meaning set forth in Section 1.704-2(b)(1) of the Regulations.


 


“Nonrecourse Liability”
shall have the meaning set forth in Section 1.704-2(b)(3) of the Regulations.


 


“Non-Transferring Members”
shall have the meaning set forth in Section 11.4(f) hereof.


 


“Offer Notice” shall have
the meaning set forth in Section 11.4(a) hereof.


 


“Offer Period” shall have
the meaning set forth in Section 11.4(b) hereof.


 


“Offer Price” shall have
the meaning set forth in Section 11.4(a) hereof


 


“Offered Membership
Interest” shall have the meaning set forth in Section 11.4 hereof.


 


“Offerees” shall have the
meaning set forth in Section 11.4(a) hereof


 


“Officers” shall have the
meaning set forth in Section 6.1(k) hereof.


 


“Operating Cash Flow”
means the Net Cash Flow of the Company from operations for a taxable year in an
amount equal to the taxable income or loss of the Company arising in the
ordinary course of the Company’s business and investment activities, increased
by tax exempt interest, depreciation, amortization, cost recovery allowances
and other noncash charges deducted in determining such taxable income and
decreased by:


 


(a)           Principal payments made
on any Company indebtedness,


 


(b)          Property replacement or
contingency reserves actually established by the Company,


 


13

















 


(c)           Capital expenditures
when made other than from reserves or from borrowings the proceeds of which are
not included in operating cash flow, and


 


(d)                                 Any
other cash expenditures (including preferred returns) not deducted in
determining such taxable income or loss.


 


“Original Agreement”
shall have the meaning set forth in the recitals hereof.


 


“Percentage Interest”
means, with respect to any Member as of any date, the ratio (expressed as a
percentage) of the total Capital Account of such Member as of such date to the
aggregate Capital Account of all Members as of such date rounded to the nearest
..01%.  The Percentage Interest of each
Member immediately after the Effective Time is set forth in Section 2.1 hereof.


 


“Permitted Transfer”
shall have the meaning set forth in Section 11.2 hereof.


 


“Person” means any
individual, partnership, corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture or other entity, or a
governmental or any political subdivision or agency thereof.


 


“Proceeding” shall have
the meaning set forth in Section 7.3(a) hereof.


 


“Procurement Agreement”
means that certain Procurement Agreement of an even date herewith by and
between Bunge Limited and the Company.


 


“Profits” and “Losses”
mean, for each Allocation Year, an amount equal to the Company’s taxable income
or loss for such Allocation Year, determined in accordance with Code Section
703(a) (for this purpose, all items of income, gain, loss, or deduction
required to be stated separately pursuant to Code Section 703(a)(1) shall be
included in taxable income or loss), with the following adjustments (without
duplication):


 


(i)            Any income of the Company that is
exempt from federal income tax and not otherwise taken into account in
computing Profits or Losses pursuant to this definition of “Profits” and
“Losses” shall be added to such taxable income or loss;


 


(ii)           Any expenditures of the Company
described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not
otherwise taken into account in computing Profits or Losses pursuant to this
definition of “Profits” and “Losses” shall be subtracted from such taxable
income or loss;


 


(iii)          In the event the Gross Asset Value of
any Company asset is adjusted pursuant to subparagraphs (ii) or (iii) of the
definition of Gross Asset Value, the amount of such adjustment shall be treated
as an item of gain (if the adjustment increases the Gross Asset Value of the
asset) or an item of loss (if the adjustment decreases the Gross


 


14

















 


Asset Value of the asset)
from the disposition of such asset and shall be taken into account for purposes
of computing Profits or Losses;


 


(iv)          Gain or loss resulting from any
disposition of Property with respect to which gain or loss is recognized for
federal income tax purposes shall be computed by reference to the Gross Asset
Value of the Property disposed of, notwithstanding that the adjusted tax basis
of such Property differs from its Gross Asset Value;


 


(v)           In lieu of the depreciation,
amortization, and other cost recovery deductions taken into account in
computing such taxable income or loss, there shall be taken into account
Depreciation for such Allocation Year, computed in accordance with the
definition of Depreciation;


 


(vi)          To the extent an adjustment to the
adjusted tax basis of any Company asset pursuant to Code Section 734(b) is
required, pursuant to Regulations Section 1.704-2(b)(2)(iv)(m)(4), to be taken
into account in determining Capital Accounts as a result of a distribution
other than in liquidation of a Member’s Interest in the Company, the amount of
such adjustment shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases such
basis) from the disposition of such asset and shall be taken into account for
purposes of computing Profits or Losses; and


 


(vii)         Notwithstanding any other provision of
this definition, any items which are specially allocated pursuant to Section
3.3 or Section 3.4 hereof shall not be taken into account in computing Profits
or Losses.


 


The amounts of the items
of Company income, gain, loss or deduction available to be specially allocated
pursuant to Sections 3.3 and 3.4 hereof shall be determined by applying rules
analogous to those set forth in subparagraphs (i) through (vi) above.


 


“Prohibited Transferees”
shall have the meaning set forth in Section 11.2 hereof.


 


“Property” means all real
and personal property acquired by, or contributed to, the Company, including
cash, and any improvements thereto, and shall include both tangible and
intangible property.


 


“Protected Party” shall
have the meaning set forth in Section 7.1 hereof.


 


“PTI” means Protein
Technologies International, Inc., a Delaware corporation (the name of Solae,
LLC and type of entity that Solae, LLC was prior to PTI’s conversion pursuant
to the provisions of Section 266 of the GCL and Section 18-214 of the Act) and
a Wholly Owned Affiliate of DuPont PTI.


 


“PTI Assets” means the
assets owned by PTI as described in the DuPont Indemnity Agreement.


 


15

















 


“Purchase Request” shall
have the meaning set forth in Section 11.4(g) hereof.


 


“Purchaser” shall have
the meaning set forth in Section 11.4(a) hereof.


 


“Reconstitution Period”
shall have the meaning set forth in Section 12.1(b) hereof.


 


“Regulations” means the
income tax regulations, including temporary regulations, promulgated under the
Code, as such regulations are amended from time to time.


 


“Regulatory Allocations”
shall have the meaning set forth in Section 3.4 hereof.


 


“Related Agreements”
means the Share Purchase Agreement, the Conveyance Documents, the Central Soya
Contribution Agreement, the Covenant Not to Compete, the Bunge Limited
Guarantee, the DuPont Indemnity Agreement, any operating agreement with respect
to facilities located in Bellevue, Ohio, any agreement for the supply of raw
materials by and between the Company and one or more of the Members or their
Affiliates, the Biotech Alliance Agreement, the License Agreement, the Finance
Loans, the Research License, the Revolving Loan, the Term Sheets, the
Procurement Agreement and any material service level agreement by and between
the Company and one or more of the Members or their Affiliates.


 


“Research License” means
that certain Research License Agreement by and between DuPont and the Company
dated as of April 1, 2003.


 


“Restructured Board”
shall have the meaning set forth in Section 11.10 hereof.


 


“Revolving Loan” means
the loan made from DuPont to the Company under that Revolving Credit Agreement
dated as of April 1, 2003 in a principal amount equal to $25,000,000 United
States Dollars granted from DuPont to the Company at the Effective Time; of
which $15,000,000 United States Dollars is drawn as of the Effective Time.


 


“Securities Act” means
the Securities Act of 1933, as amended.


 


“SEC Requirements” means
the applicable regulations, rules and requirements promulgated by the United
States Securities Exchange Commission.


 


“Seller” shall have the
meaning set forth in Section 11.4 hereof.


 


“Services” means any
business services generally provided by any Member or its Affiliates.


 


“Share Purchase
Agreement” means that certain Share Purchase Agreement entered into on or about
the Effective Time and pursuant to which Bunge Limited shall sell to the
Company, and the Company shall purchase from Bunge Limited, the Shares for a
purchase price of US $255,790,302.


 


16

















 


“Shares” means, at
the Closing (as defined in the Share Purchase Agreement) 677,563,283 ordinary
shares representing approximately eighty-two point twenty-three percent
(82.23%)  of all of the issued and
outstanding capital stock of Solae Brasil Holdings to be purchased by the
Company from Bunge Limited pursuant to the Share Purchase Agreement as more
particularly described in the Share Purchase Agreement.


 


“Solae Brasil”
means Solae do Brasil Ind. Com. Alimentos Ltda., a Brazilian corporation and,
at the Closing Date (as defined in the Share Purchase Agreement), a Wholly
Owned Affiliate of Solae Brasil Holdings.


 


“Solae Brasil
Holdings”  means Solae do Brasil
Holdings S.A., a to-be formed Brazilian corporation that will be a subsidiary
of Bunge Limited and that will own one hundred percent (100%) of Solae Brasil.


 


“Solae, LLC” means
Solae, LLC a Delaware limited liability company resulting from the conversion
of PTI pursuant to the provisions of Section 266 of the GCL and Section 18-214
of the Act and a Wholly Owned Affiliate of the Company.


 


“Term Sheets”
means those certain Term Sheets entered into by Solae, LLC and Central Soya or
its Affiliate on an even date herewith relating to the operation of the
Company’s or its subsidiaries’ facilities.


 


“Transfer” means,
as a noun, any voluntary or involuntary transfer, sale, pledge, hypothecation,
or other disposition and, as a verb, voluntarily or involuntarily to transfer,
sell, pledge, hypothecate, or otherwise dispose of.


 


“Transferring
Member” shall have the meaning set forth in Section 11.4(f) hereof.


 


“Voluntary
Bankruptcy” shall have the meaning set forth in the definition of “Bankruptcy.”


 


“Wholly Owned
Affiliate” of any Person means an Affiliate of such Person (i) one hundred
percent (100%) of the voting stock or beneficial ownership of which is owned
directly by such Person, or by any Person who, directly or indirectly, owns one
hundred percent (100%) of the voting stock or beneficial ownership of such
Person, (ii) an Affiliate to such Person who, directly or indirectly, owns one
hundred percent (100%) of the voting stock or beneficial ownership of such
Person, and (iii) any Wholly Owned Affiliate of any Affiliate described in
clause (i) or clause (ii).


 


1.2           Formation.


 


The Company is the
resulting limited liability company from the conversion of DuPont PTI into the
Company (the “Conversion”) pursuant to the provisions of Section 266 of the GCL
and Section 18-214 of the Act and the filing of the Certificate of Conversion
and the Certificate in the Office of the Secretary of State of the State of
Delaware on March 28, 2003.  The Members
hereby agree to continue the Company as a limited liability company under and


 


17

















 


pursuant to the provisions of the Act and upon the terms and conditions
set forth in this Agreement.  The fact
that the Certificate is on file in the office of the Secretary of State, State
of Delaware, shall constitute notice that the Company is a limited liability
company.  At the Effective Time, Central
Soya shall be admitted as a Member of the Company.  The rights and liabilities of the Members shall be as provided
under the Act, the Certificate and this Agreement.


 


1.3           Name


 


The name of the
Company shall continue to be Solae Holdings LLC and all business of the Company
shall continue to be conducted in such name. 
The Board of Managers (by unanimous consent) may change the name of the
Company upon ten (10) Business Days notice to the Members.


 


1.4           Purpose; Powers.


 


(a)           The purposes of the Company are (i)
to own and direct the operation of the Business, (ii) to enter into and perform
the Company’s obligations under the Related Agreements, (iii) to own the stock
and interests, as the case may be, in the Company’s subsidiaries and to direct
the operation of the Company’s subsidiaries, (iv) to engage in such additional
activities as the Members may approve and (v) to engage in any and all
activities related or incidental to the purposes set forth in clauses (i)
through (iv) of this Section 1.4(a). 
The purposes of the Company’s subsidiaries (including, but not limited to,
Solae, LLC) shall be limited to the purposes of the Company as set forth in
this Section 1.4(a).


 


(b)           The Company has the power to do any
and all acts necessary, appropriate, proper, advisable, incidental or
convenient to or in furtherance of the purposes of the Company set forth in
Section 1.4(a) hereof and has, without limitation, any and all powers that may
be exercised on behalf of the Company by the Board of Managers pursuant to
Section 6 hereof.


 


(c)           The Members covenant and agree that
they shall not cause the Company in its capacity as the sole member of Solae,
LLC or the Entities to cause Solae, LLC or the Entities, as the case may be, to
take any actions which would require the consent of the Board of Managers or
Members if such actions were to be taken by the Company without first obtaining
the same approval of the Board of Managers or the Members, as the case may be,
that would have been required if the Company had taken such action.


 


1.5           Registered Office.


 


The registered
office of the Company in the State of Delaware is initially located at The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801.


 


1.6           Term.


 


The term of the
Company commenced on October 1, 1997, being the date the certificate of
incorporation of DuPont PTI was filed in the Office of the Secretary of State
of the


 


18

















 


State of Delaware in accordance with the GCL and shall continue until
the winding up and liquidation of the Company and its business is completed
following a Dissolution Event, as provided in Section 12 hereof.


 


1.7           Filings; Agent for Service of Process.


 


(a)           The Board of Managers shall take or
cause to be taken any and all other actions reasonably necessary to perfect and
maintain the status of the Company as a limited liability company under the
laws of the State of Delaware, including the preparation and filing of such
amendments to the Certificate and such other assumed name certificates,
documents, instruments and publications as may be required by law, including,
without limitation, action to reflect:


 


(i)            a
change in the Company name;


 


(ii)           a
correction of false or erroneous statements in the Certificate or the desire of
the Members to make a change in any statement therein in order that it shall
accurately represent the agreement among the Members; or


 


(iii)          a
change in the time for dissolution of the Company as stated in the Certificate
and/or in this Agreement.


 


(b)           The Board of Managers shall execute
(or cause to be executed) and cause to be filed original or amended
certificates and shall take any and all other actions as may be reasonably
necessary to perfect and maintain the status of the Company as a limited
liability company or similar type of entity under the laws of any other jurisdictions
in which the Company engages in business.


 


(c)           The registered agent for service of
process on the Company in the State of Delaware shall be The Corporation Trust
Company or any successor as appointed by the Board of Managers in accordance
with the Act.


 


(d)           Upon the dissolution and completion
of the winding up and liquidation of the Company in accordance with Section 12,
the Board of Managers shall promptly execute (or cause to be executed) and
cause to be filed a Certificate of Cancellation in accordance with the Act and
the laws of any other jurisdictions in which the Board of Managers deems such
filing necessary or advisable.


 


1.8           Title to Property.


 


All Property owned
by the Company shall be owned by the Company as an entity and no Member shall
have any ownership interest in such Property in its individual name, and each
Member’s Interest in the Company shall be personal property for all
purposes.  At all times after the
Effective Time, the Company shall hold title to all of its Property in the name
of the Company and not in the name of any Member.


 


19

















 


1.9           Payments of Individual Obligations.


 


The Company’s
credit and assets shall be used solely for the benefit of the Company, and no
asset of the Company shall be transferred or encumbered for, or in payment of,
any individual obligation of any Member.


 


1.10         Independent Activities; Transactions with
Affiliates.


 


(a)           Each Manager shall be required to
devote such time to the affairs of the Company as may be necessary to manage
and operate the Company, and shall be free to serve any other Person or
enterprise in any capacity that such Manager may deem appropriate in his, her
or its discretion.


 


(b)           Each Member shall comply, and shall
cause its Affiliates to comply, with the terms and conditions of the Covenant
Not to Compete.


 


(c)           The Company is authorized to purchase
Services from any Member acting on its own behalf, or any Affiliate of any
Member, at a price equal to the cost of such Services plus a reasonable profit
margin not to exceed five percent  (5%);
provided, however, that in no event shall any Member or its Affiliates charge
the Company an amount for such Services that exceeds the amount such Member or
its Affiliates charges for such Services to unaffiliated third parties.  Notwithstanding anything to the contrary set
forth in this Section 1.10(c), the Company is hereby authorized to enter into
the Related Agreements and the provisions of this Section 1.10(c) shall not
apply to the Finance Loans, the License Agreement, the Research License or the
Revolving Loan.  Each of DuPont and
Central Soya shall provide or cause to be provided to the Company those
Services set forth in Schedule 2 attached hereto and made a part hereof
at a price for such Services to be agreed upon by the Company and the
applicable provider for a period commencing on the Effective Time and ending
April 30, 2003 or such earlier time as definitive agreements related to such
Services have been entered into by the Company and the relevant service
provider.


 


Section 2:  Members’ Capital Contributions


 


2.1           Initial Capital Contributions.


 


The name, address,
initial Capital Contribution, and initial Percentage Interest of each of the
Members is as follows:


 


	
  Names and Addresses

  	
   

  	
  Initial
  Capital

  Contribution

  	
   

  	
  Initial
  Percentage

  Interest

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E. I. du Pont de
  Nemours

  and Company

  1007 Market Street

  Wilmington, DE  19898

  United States of America

  	
   

  	
  The PTI Assets
  described in the DuPont Indemnity Agreement with an agreed upon Gross Asset Value
  equal to U.S. $1,510,000,000.

  	
   

  	
  71.94

  	
  %

  



 


20

















 


	
  Attention: Vice
  President

  and General Manager,

  DuPont Nutrition & Health

  Facsimile: (302) 999-5480

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Central Soya Company,
  Inc.

  c/o Bunge Management Services, Inc.

  50 Main St. 6th Floor

  White Plains, NY 10606

  United States of America

  Attention: Andrew J. Burke

  Facsimile: (914) 684-3417

  	
   

  	
  The Contributed
  Property described in the Central Soya Contribution Agreement with an agreed upon Gross Asset Value equal to U.S. $589,000,000.

  	
   

  	
  28.06

  	
  %

  



 


2.2           Central Soya Contribution
Agreement/DuPont Indemnity Agreement.


 


The contributions
made by Central Soya pursuant to Section 2.1 hereof shall be subject to the
terms and provisions of the Central Soya Contribution Agreement.  Simultaneously with the execution of this
Agreement, the Company shall enter into the Central Soya Contribution
Agreement, and any agreement referred to therein, without requirement of any
further act, approval, or vote of any other Person and such agreements shall be
deemed to satisfy all requirements of this Agreement.  Simultaneously with the execution of this Agreement, the Company
shall enter into the DuPont Indemnity Agreement without requirement of any
further act, approval, or vote of any other Person and such agreements shall be
deemed to satisfy all requirements of this Agreement.  At the Effective Time, DuPont and the Company shall enter into
the License Agreement which shall grant to the Company a royalty free license
for the Company’s use of the name “Solae” and which shall allow the Company to
sublicense the right to use the name “Solae” to its subsidiaries.  At the time DuPont has obtained the
registrations for the trademark “Solae” from the US Patent and Trademark
Office, DuPont shall transfer such trademark to the Company pursuant to an
agreement on terms mutually agreeable to the Company and DuPont for nominal
consideration.  For the avoidance of
doubt, the parties agree that the value of such trademark has already been
included in the valuations set forth in Section 2.1 above and as a result
DuPont shall not be entitled to any increase in its Capital Account as a result
of such contribution.


 


2.3           Additional Capital Contributions.


 


(a)           Except as otherwise provided in this
Section 2.3, Section 3.3 or pursuant to a Capital Call, the Members may make
Additional Capital Contributions only with the written consent of the Members.


 


(b)           The Board of Managers may call for
Additional Capital Contributions from the Members in an amount proportional to
the Members’ relative Percentage Interests (a “Capital Call”).  Written notice of a Capital Call shall be
mailed to each of the Members and each of the Members shall make the Capital
Call specified in such notice within


 


21

















 


thirty (30) days following such Member’s receipt of such notice.  In the event any Member fails to make all or
any portion of its Additional Capital Contributions with respect to a Capital
Call, the other Members may make Additional Capital Contributions for their own
account in an amount not to exceed such Member’s shortfall in making such
Additional Capital Contributions within fifteen (15) days following such
failure.  Notwithstanding anything
contained herein to the contrary, during the Initial Period and the Grace
Period, no payment received by the Company from a Member pursuant to any
Capital Call shall be applied by the Company to the principal balances on the
Finance Loans unless otherwise consented to by the Members.


 


(c)           During the Initial Period and subject
to the limitations of this clause (c), Central Soya or its designated Affiliate
shall have the right, upon irrevocable written notice to the Members and the
Company, to make Additional Capital Contributions in addition to those
contemplated in (b) above in such amounts as Central Soya shall determine (the
“Central Soya Purchase Option”) and may, upon prior written notice to the
Members and the Company elect to defer payment of such Additional Capital
Contribution for a period not to exceed ninety (90) days; provided, however,
that (i) neither Central Soya’s Capital Account nor Percentage Interest shall
reflect such Additional Capital Contribution until such payment is actually
made and (ii) Central Soya shall not, without the prior written consent of the
Members, be permitted to make Additional Capital Contributions to the extent
such Additional Capital Contributions will result in Central Soya’s Percentage
Interest in the Company exceeding forty percent (40%); and provided further,
that Central Soya may exercise the Central Soya Purchase Option only on each
December 31 during the Initial Period. 
Any Additional Capital Contributions contributed by Central Soya
pursuant to the Central Soya Purchase Option shall be calculated upon the
Capital Accounts of the Members at the applicable December 31, subject to the
forty percent (40%) cap provided above, and shall be applied by the Company,
unless otherwise determined by the Board of Managers, to the principal balances
on the Finance Loans to the extent such balances exist at the time such
Additional Capital Contributions are made. 
If at the time of payment, the payment of Central Soya’s Additional
Capital Contribution pursuant to the Central Soya Purchase Option results in Central
Soya’s Percentage Interest exceeding forty percent (40%), the Company shall
make a distribution to Central Soya to the extent necessary to make Central
Soya’s Percentage Interest in the Company equal to forty percent (40%).  Notwithstanding the foregoing, if at the end
of the Initial Period Central Soya has not made sufficient Additional Capital
Contributions to increase its Percentage Interest to forty percent (40%),
Central Soya may, within three (3) Business Days following its receipt from the
Company of the determination of the Capital Accounts of the Members at April 1,
2006 (the “Grace Period”), make an Additional Capital Contribution calculated
upon the Capital Accounts of the Members at April 1, 2006 (the “Central Soya
Grace Period Option”), subject to the forty percent (40%) cap provided above
and may, upon written notice to the Members and the Company during the Grace
Period, elect to defer payment of such Additional Capital Contribution for a
period not to exceed one hundred eighty (180) days; provided, however, that
neither Central Soya’s Capital Account nor Percentage Interest shall reflect
such Additional Capital Contribution until such payment is actually made.  If at the time of payment, the payment of
Central Soya’s Additional Capital Contribution pursuant to the Central Soya
Grace Period Option results in Central Soya’s Percentage Interest exceeding
forty percent (40%), the Company shall make a distribution to Central Soya to
the extent necessary to make Central Soya’s Percentage Interest in the Company
equal to forty percent (40%).


 


22

















 


(d)           In the event Central Soya does not,
within the time periods set forth in clause (c), make Additional Capital
Contributions in respect of the Central Soya Purchase Option and the Central
Soya Grace Period Option in an aggregate amount of at least Three Hundred
Million Dollars ($300,000,000), DuPont may make an Additional Capital
Contribution (the “DuPont Purchase Option”) upon written notice to the other
Members and the Company within thirty (30) Business Days in an amount equal to
the difference between Three Hundred Million Dollars ($300,000,000) and the
amount of the Additional Capital Contributions made by Central Soya in respect
of the Central Soya Purchase Option and the Central Soya Grace Period Option
and thus increase its Percentage Interest. 
DuPont may elect to defer payment of such DuPont Purchase Option for a
period not to exceed one hundred eighty (180) days; provided, however, that
neither DuPont’s Capital Account nor Percentage Interest shall reflect such
Additional Capital Contribution until such payment is actually made.


 


Section 3:  Allocations


 


3.1           Profits.


 


After giving
effect to the special allocations set forth in Sections 3.3 and 3.4, Profits
for any Allocation Year shall be allocated to the Members in proportion to
their respective Percentage Interests.


 


3.2           Losses.


 


After giving
effect to the special allocations set forth in Sections 3.3 and 3.4 and subject
to Section 3.5, Losses for any Allocation Year shall be allocated to the
Members in proportion to their respective Percentage Interests.


 


3.3           Special Allocations.


 


The Following
special allocations shall be made in the following order:


 


(a)           Minimum Gain Chargeback. Except as
otherwise provided in Section 1.704-2(f) of the Regulations, notwithstanding
any other provision of this Section 3, if there is a net decrease in Company
Minimum Gain during any Allocation Year, each Member shall be specially
allocated items of Company income and gain for such Allocation Year (and, if
necessary, subsequent Allocation Years) in an amount equal to such Member’s
share of the net decrease in Company Minimum Gain, determined in accordance
with Regulations Section 1.704-2(g). Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Member pursuant thereto. 
The items to be so allocated shall be determined in accordance with
sections 1.704-2(f) (6) and 1.704-2(j)(2) of the Regulations.  This Section 3.3(a) is intended to comply
with the minimum gain chargeback requirement in Section 1.704-2(f) of the
Regulations and shall be interpreted consistently therewith.


 


23

















 


(b)           Member Minimum Gain Chargeback.  Except as otherwise provided in Section
1.704-2(i) (4) of the Regulations, notwithstanding any other provision of this
Section 3, if there is a net decrease in Member Nonrecourse Debt Minimum Gain
attributable to a Member Nonrecourse Debt during any Allocation Year, each
Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable
to such Member Nonrecourse Debt, determined in accordance with Section
1.704-2(i) (5) of the Regulations, shall be specially allocated items of
Company income and gain for such Allocation Year (and, if necessary, subsequent
Allocation Years) in an amount equal to such Member’s share of the net decrease
in Member Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i) (4).  Allocations pursuant to
the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Member pursuant thereto.  The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i) (4) and 1.704-2(j) (2) of the
Regulations.  This Section 3.3(b) is
intended to comply with the minimum gain chargeback requirement in Section
1.704-2(i) (4) of the Regulations and shall be interpreted consistently therewith.


 


(c)           Qualified Income Offset.  In the event any Member unexpectedly
receives any adjustments, allocations, or distributions described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of
the Regulations, items of Company income and gain shall be specially allocated
to such Member in an amount and manner sufficient to eliminate, to the extent
required by the Regulations, the Adjusted Capital Account Deficit of the Member
as quickly as possible, provided that an allocation pursuant to this Section
3.3(c) shall be made only if and to the extent that the Member would have an
Adjusted Capital Account Deficit after all other allocations provided for in
this Section 3 have been tentatively made as if this Section 3.3(c) were not in
this Agreement.


 


(d)           Gross Income Allocation.  In the event any Member has a deficit
Capital Account at the end of any Allocation Year which is in excess of the sum
of (i) the amount such Member is obligated to restore pursuant to the
penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5),
each such Member shall be specially allocated items of Company income and gain
in the amount of such excess as quickly as possible, provided that an
allocation pursuant to this Section 3.3(d) shall be made only if and to the extent
that such Member would have a deficit Capital Account in excess of such sum
after all other allocations provided for in this Section 3 have been made as if
Section 3.3(c) and this Section 3.3(d) were not in this Agreement.


 


(e)           Nonrecourse Deductions.  Nonrecourse Deductions for any Allocation
Year shall be specially allocated to the Members in proportion to their
respective Percentage Interests.


 


(f)            Member Nonrecourse Deductions.  Any Member Nonrecourse Deductions for any
Allocation Year shall be specially allocated to the Member who bears the
economic risk of loss with respect to the Member Nonrecourse Debt to which such
Member Nonrecourse Deductions are attributable in accordance with Regulations
Section 1.704-2(i) (1).


 


24

















 


(g)           Section 754 Adjustments.  To the extent an adjustment to the adjusted
tax basis of any Company asset, pursuant to Code Section 734(b) or Code Section
743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or
1.704-1 (b)(2)(iv)(m)(4), to be taken into account in determining Capital
Accounts as the result of a distribution to a Member in complete liquidation of
such Member’s interest in the Company, the amount of such adjustment to Capital
Accounts shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases such basis) and such
gain or loss shall be specially allocated to the Members in accordance with
their interests in the Company in the event Regulations Section
1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distribution was
made in the event Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.


 


(h)           Allocations Relating to Taxable
Issuance of Company Membership Interests. 
Any income, gain, loss or deduction realized as a direct or indirect
result of the issuance of Membership Interests by the Company to a Member (the
“Issuance Items”) shall be allocated among the Members so that, to the extent
possible, the net amount of such Issuance Items, together with all other
allocations under this Agreement to each Member shall be equal to the net
amount that would have been allocated to each such Member if the Issuance Items
had not been realized.


 


(i)            Allocations Relating to the Excluded
Central Soya Liabilities.  If the
Company or any Wholly Owned Affiliate of the Company (determined as of the
Effective Time) incurs or suffers any Damages arising out of or relating to any
Excluded Central Soya Liability, the amount of actual Damages suffered or
incurred by the Company or any Wholly Owned Affiliate of the Company shall be
specially allocated as an expense or a loss to Central Soya.  If any Person directly or indirectly owned
by the Company, other than a Wholly Owned Affiliate of the Company, incurs or
suffers any Damages arising out of or relating to any Excluded Central Soya
Liability, an amount equal to the actual amount of Damages suffered or incurred
by such Person times Central Soya’s direct or indirect ownership percentage of
such Person (as of the Effective Time), shall be specially allocated as an
expense or a loss to Central Soya.


 


(j)            Allocations Relating to the Excluded
DuPont Liabilities.  If the Company or
any Wholly Owned Affiliate of the Company (determined as of the Effective Time)
incurs or suffers any Damages arising out of or relating to any Excluded DuPont
Liability, the amount of actual Damages suffered or incurred by the Company or
any Wholly Owned Affiliate of the Company shall be specially allocated as an
expense or a loss to DuPont.  If any
Person directly or indirectly owned by the Company, other than a Wholly Owned
Affiliate of the Company, incurs or suffers any Damages arising out of or
relating to any Excluded DuPont Liability, an amount equal to the actual amount
of Damages suffered or incurred by such Person times the Company’s direct or
indirect ownership percentage of such Person (as of the Effective Time), shall
be specially allocated as an expense or a loss to DuPont.


 


(k)           Allocations Relating to a Central
Soya Breach.  If the Company or any
Wholly Owned Affiliate of the Company (determined as of the Effective Time)
incurs or suffers any Damages arising out of or relating to any Central Soya
Breach, the amount of actual


 


25

















 


Damages suffered or incurred by the Company or any Wholly Owned
Affiliate shall be specially allocated as an expense or a loss to Central
Soya.  If any Person directly or
indirectly owned by the Company, other than a Wholly Owned Affiliate of the
Company, incurs or suffers any Damages arising out of or relating to any
Central Soya Breach, an amount equal to the actual amount of Damages suffered
or incurred by such Person times Central Soya’s direct or indirect ownership
percentage of such Person (as of the Effective Time), shall be specially
allocated as an expense or a loss to Central Soya.


 


(l)            Allocations Relating to a DuPont
Breach.  If the Company or any Wholly
Owned Affiliate of the Company (determined as of the Effective Time) incurs or
suffers any Damages arising out of or relating to any DuPont Breach, the amount
of actual Damages suffered or incurred by the Company or any Wholly Owned
Affiliate shall be specially allocated as an expense or a loss to DuPont.  If any Person directly or indirectly owned
by the Company, other than a Wholly Owned Affiliate of the Company, incurs or
suffers any Damages arising out of or relating to any DuPont Breach, an amount
equal to the actual amount of Damages suffered or incurred by such Person times
the Company’s direct or indirect ownership percentage of such Person (as of the
Effective Time), shall be specially allocated as an expense or a loss to
DuPont.


 


(m)          Allocations Relating to a Central Soya
US Tax Assessment or Transfer Tax Assessment.  
If the Company or any Wholly Owned Affiliate of the Company (determined
as of the Effective Time) incurs or suffers any Central Soya US Tax Assessment,
the amount of such Central Soya US Tax Assessment shall be specially allocated
to Central Soya. If any Person directly or indirectly owned by the Company,
other than a Wholly Owned Affiliate of the Company, incurs or suffers any
Central Soya US Tax Assessment, an amount equal to the actual amount of such
Central Soya US Tax Assessment suffered or incurred by such Person times
Central Soya’s direct or indirect ownership percentage of such Person (as of
the Effective Time), shall be specially allocated as an expense or a loss to
Central Soya.  If the Company or any
Wholly Owned Affiliate of the Company (determined as of the Effective Time)
incurs or suffers any Central Soya Transfer Tax Assessment, the amount of such
Central Soya Transfer Tax Assessment shall be specially allocated to Central
Soya. If any Person directly or indirectly owned by the Company, other than a Wholly
Owned Affiliate of the Company, incurs or suffers any Central Soya Transfer Tax
Assessment, an amount equal to the actual amount of such Central Soya Transfer
Tax Assessment suffered or incurred by such Person times Central Soya’s direct
or indirect ownership percentage of such Person (as of the Effective Time),
shall be specially allocated as an expense or a loss to Central Soya.


 


(n)           Allocations Relating to a DuPont US
Tax Assessment or Transfer Tax Assessment.  
If the Company or any Wholly Owned Affiliate of the Company (determined
as of the Effective Time) incurs or suffers any DuPont US Tax Assessment, the
amount of such DuPont US Tax Assessment shall be specially allocated to DuPont.
If any Person directly or indirectly owned by the Company, other than a Wholly
Owned Affiliate of the Company, incurs or suffers any DuPont US Tax Assessment,
an amount equal to the actual amount of such DuPont US Tax Assessment suffered
or incurred by such Person times the Company’s direct or indirect ownership percentage
of such Person (as of the Effective Time) shall be specially allocated as an
expense or a loss to DuPont.  If the
Company or any Wholly Owned Affiliate of the Company (determined as of the
Effective Time) incurs or suffers any DuPont Transfer Tax


 


26

















 


Assessment, the amount of such DuPont Transfer Tax Assessment shall be
specially allocated to DuPont.  If any
Person directly or indirectly owned by the Company, other than a Wholly Owned
Affiliate of the Company, incurs or suffers any DuPont Transfer Tax Assessment,
an amount equal to the actual amount of such DuPont Transfer Tax Assessment
suffered or incurred by such Person times the Company’s direct or indirect
ownership percentage of such Person (as of the Effective Time), shall be
specially allocated as an expense or a loss to DuPont.


 


(o)           Allocations Relating to a Central
Soya Foreign Tax Assessment.   If the
Company or any Wholly Owned Affiliate of the Company (as of Effective Time)
incurs or suffers any Central Soya Foreign Tax Assessment, an amount equal to
the actual amount of such Central Soya Foreign Tax Assessment divided by (1-R),
where R equals the then-current applicable US federal tax rate (as a decimal)
plus .02, shall be specially allocated as an expense or a loss to Central
Soya.  If any Person directly or
indirectly owned by the Company, other than a Wholly Owned Affiliate of the
Company, incurs or suffers any Central Soya Foreign Tax Assessment, an amount
equal to the amount that would be specially allocated pursuant to the first
sentence of this Section 3.3(o) times Central Soya’s direct or indirect
ownership percentage of such Person (as of the Effective Time), shall be
specially allocated as an expense or a loss to Central Soya.


 


(p)           Allocations Relating to a DuPont
Foreign Tax Assessment.  If the Company
or any Wholly Owned Affiliate of the Company (determined as of the Effective
Time) incurs or suffers any DuPont Foreign Tax Assessment, an amount equal to
the actual amount of such DuPont Foreign Tax Assessment divided by (1-R), where
R equals the then-current applicable US federal tax rate (as a decimal) plus
..02, shall be specially allocated as an expense or a loss to DuPont.  If any Person directly or indirectly owned
by the Company, other than a Wholly Owned Affiliate of the Company, incurs or
suffers any DuPont Foreign Tax Assessment, an amount equal to the amount that
would be specially allocated pursuant to the first sentence of this Section
3.3(o) times the Company’s direct or indirect ownership percentage of such
Person (as of the Effective Time), shall be specially allocated as an expense
or a loss to DuPont.


 


(q)           Allocations Relating to Brazil Taxes. 
If the Company incurs a Brazilian tax on the sale of the Shares of Solae
Brasil Holdings (or any successor to Solae Brasil Holdings) to a Person other
than a Member (or an Affiliate of a Member) and there is a Brazilian tax
imposed on such sale that exceeds the amount of Brazilian tax that would have
been imposed had Bunge Limited transferred the Shares to the Company in a
manner that would have resulted in a Brazilian tax basis to the Company in the
Shares equal to the purchase price of the Shares, the excess amount of
Brazilian tax as determined by the difference between the Brazilian Central
Banks Foreign Capital Registry for Solae Brasil Holdings as of the Closing and
$255,790,302 shall be specially allocated as an expense or a loss directly to
Central Soya; provided, however that if such a proposed sale or sales would
trigger a special allocation to Central Soya as provided in this Section 3.3(q)
in excess of $500,000 individually or in the aggregate, such proposed sale
shall not be entered into or consummated without the prior written consent of
Central Soya.


 


(r)            Allocations relating to a Central
Soya Adjustment Amount.  If the
Company or any Wholly Owned Affiliate of the Company (determined as of the
Effective Time)


 


27

















 


incurs or suffers any Damages arising out of or relating to any Central
Soya Adjustment Amount, the amount of actual Damages suffered or incurred by
the Company or any Wholly Owned Affiliate shall be specially allocated as an
expense or a loss to Central Soya.  If
any Person directly or indirectly owned by the Company, other than a Wholly
Owned Affiliate of the Company, incurs or suffers any Damages arising out of or
relating to any Central Soya Adjustment Amount, an amount equal to the actual
amount of Damages suffered or incurred by such Person times Central Soya’s
direct or indirect ownership percentage of such Person (as of the Effective
Time), shall be specially allocated as an expense or a loss to Central Soya.


 


(s)           Allocations relating to a DuPont Adjustment Amount.  If the Company or any Wholly Owned
Affiliate of the Company (determined as of the Effective Time) incurs or
suffers any Damages arising out of or relating to any DuPont Adjustment Amount,
the amount of actual Damages suffered or incurred by the Company or any Wholly
Owned Affiliate shall be specially allocated as an expense or a loss to
DuPont.  If any Person directly or
indirectly owned by the Company, other than a Wholly Owned Affiliate of the
Company, incurs or suffers any Damages arising out of or relating to any DuPont
Adjustment Amount, an amount equal to the actual amount of Damages suffered or
incurred by such Person times the Company’s direct or indirect ownership
percentage of such Person (as of the Effective Time), shall be specially
allocated as an expense or a loss to DuPont.


 


(t)            Allocations Relating to the PTI Pension
Plan.  To the extent that the
termination liability incurred by the Company or Solae, LLC with respect to the
“Protein Technologies International Retirement Plan” exceeds the value of the
pension trust assets contained in such plan as of the Effective Time, and,
subject to Applicable Law, unless DuPont funds such shortfall within sixty (60)
days of the determination of same by making a contribution directly to such
pension plan, the amount of such excess shall be specially allocated as an
expense or a loss to DuPont.


 


(u)           Allocations Relating to Solae Brasil
Holdings.  For that period of time
commencing on the date that the Company has paid the Purchase Price under the
Share Purchase Agreement, paid the Tender Offer Price (as defined in the Share
Purchase Agreement) to the holders of all of the shares tendered in the Tender
Offer and paid the Consideration (as defined in the Procurement Agreement)
under the Procurement Agreement (the “Make-Whole Period”), an amount equal to
the amount that Solae Brasil Holdings is required to distribute to the holders
of the minority ownership interest in Solae Brasil Holdings and not to the
Company during the Make-Whole Period divided by (1-R), where R equals the
then-current applicable US federal tax rate (as a decimal) plus .02, shall be
specially allocated as an expense or a loss to Central Soya (the “Make-Whole
Expense”); provided, however, that during such period, the Company shall not
cause Solae Brasil Holdings to issue a dividend in an aggregate amount in
excess of the net cash flow of Solae Brasil. 
If the Company is not able to acquire one hundred percent (100%) of the
capital stock of Solae Brasil Holdings by the end of the Purchase Period (as
defined in the Share Purchase Agreement), and the Company incurs or suffers any
Damages (other than the Make-Whole Expense and other than Damages resulting
from the negligent acts or omissions of the Company and its Affiliates) arising
out of or relating to the fact that the Company does not own one hundred
percent (100%) of the issued and outstanding capital stock of Solae Brasil
Holdings, the amount of actual Damages (other than the Make-Whole Expense


 


28

















 


and other than Damages resulting from the negligent acts or omissions
of the Company and its Affiliates) suffered or incurred by the Company or any
Wholly Owned Affiliate shall be specially allocated as an expense or a loss to
Central Soya.


 


(v)           Effect of Certain Expense or Loss
Special Allocations.  Upon the
occurrence of any special allocation as described in Sections 3.3(i) through
(u) above, the Company shall notify the Member whose Capital Account is
affected by such special allocation (the “Affected Member”) in writing of such
special allocation within thirty (30) days of its occurrence.  Within five (5) days following the Affected
Member’s receipt of such notice, the Affected Member shall notify the Company
of any dispute it may have with respect to such special allocation and the
dispute shall be submitted to the Board of Managers for resolution.  If the Board of Managers is unable to
unanimously agree upon a resolution to such dispute within fifteen (15) days
following its submission, the dispute shall be submitted for resolution to a nationally
recognized independent accounting firm that is not the principle auditor of any
of the Members that is unanimously chosen by the Board of Managers, whose
resolution shall be final and binding on the parties.  If the Board of Managers is unable to unanimously agree upon such
an accounting firm, DuPont and Central Soya shall each select such an
accounting firm and such accounting firms shall select a third nationally
recognized independent accounting firm, that is not the principle auditor of
any of the Members, to resolve the dispute. 
The fees of such accounting firms shall be borne by the Members in an
inverse proportion as they may prevail on the disputes resolved by such
accounting firms. Within thirty (30) days following the final determination of
the special allocation as provided in this Section 3.3(v), the Affected Member
shall make an Additional Capital Contribution in cash equal to the amount of
such special allocation; provided, however, that for purposes of calculating
the Affected Member’s Percentage Interest during the period beginning on the
date of such special allocation and ending upon the earlier to occur of (i) the
Affected Member’s Additional Capital Contribution as provided in this Section
3.3(v) or (ii) the expiration of the thirty (30) day period following the
Affected Member’s receipt of written notice of such special allocation, the
Affected Member’s Additional Capital Contribution as provided in this Section
3.3(v) shall be deemed to have been made on the date of such special
allocation.


 


(w)          Allocations Relating to a Central Soya
US Tax Refund.  If the Company or any
Wholly Owned Affiliate of the Company (determined as of the Effective Time)
receives a Central Soya US Tax Refund, the amount of such Central Soya US Tax
Refund shall be specially allocated as income to Central Soya.  If any Person directly or indirectly owned
by the Company, other than a Wholly Owned Affiliate of the Company, receives
any Central Soya US Tax Refund, an amount equal to the actual amount of such Central
Soya US Tax Refund received by such Person times Central Soya’s direct or
indirect ownership percentage of such Person (as of the Effective Time), shall
be specially allocated as income to Central Soya.


 


(x)            Allocations Relating to a DuPont US
Tax Refund.  If the Company or any
Wholly Owned Affiliate of the Company (determined as of the Effective Time)
receives a DuPont US Tax Refund, the amount of such DuPont US Tax Refund shall
be specially allocated as income to DuPont. 
If any Person directly or indirectly owned by the Company, other than a
Wholly Owned Affiliate of the Company, receives any DuPont US Tax Refund, an
amount equal to the actual amount of such DuPont US Tax Refund received by such
Person times the


 


29

















 


Company’s direct or indirect ownership percentage of such Person (as of
the Effective Time), shall be specially allocated as income to DuPont.


 


(y)           Allocations Relating to a Central
Soya Foreign Tax Refund.  If the Company
or any Wholly Owned Affiliate of the Company (determined as of the Effective
Time) receives any Central Soya Foreign Tax Refund, an amount equal to the
actual amount of such Central Soya Foreign Tax Refund divided by (1-R), where R
equals the then-current applicable US federal tax rate (as a decimal) plus .02,
shall be specially allocated as income to Central Soya.  If any Person directly or indirectly owned
by the Company, other than a Wholly Owned Affiliate of the Company, receives
any Central Soya Foreign Tax Refund, an amount equal to the amount that would
be specially allocated pursuant to the first sentence of this Section 3.3(y)
times Central Soya’s direct or indirect ownership percentage of such Person (as
of the Effective Time), shall be specially allocated as income to Central Soya.


 


(z)            Allocations Relating to a DuPont
Foreign Tax Refund.  If the Company or
any Wholly Owned Affiliate of the Company (determined as of the Effective Time)
receives any DuPont Foreign Tax Refund, an amount equal to the actual amount of
such DuPont Foreign Tax Refund divided by (1-R), where R equals the
then-current applicable US federal tax rate (as a decimal) plus .02, shall be
specially allocated as income to DuPont. 
If any Person directly or indirectly owned by the Company, other than a
Wholly Owned Affiliate of the Company, receives any DuPont Foreign Tax Refund,
an amount equal to the amount that would be specially allocated pursuant to the
first sentence of this Section 3.3(z) times the Company’s direct or indirect
ownership percentage of such Person (as of the Effective Time), shall be
specially allocated as income to DuPont.


 


 


(aa)         Effect of Certain Income Special
Allocations.  Upon the occurrence of any
special allocation as described in Sections 3.3(w) through (z) above, the Company
shall notify the Members in writing of such special allocation within thirty
(30) days of its occurrence.  Within
five (5) days following the Members’ receipt of such notice, the Members shall
notify the Company of any dispute they may have with respect to such special
allocation and the dispute shall be submitted to the Board of Managers for
resolution.  If the Board of Managers is
unable to unanimously agree upon a resolution to such dispute within fifteen (15)
days following its submission, the dispute shall be submitted for resolution to
a nationally recognized independent accounting firm that is not the principle
auditor of any of the Members that is unanimously chosen by the Board of
Managers, whose resolution shall be final and binding on the parties.  If the Board of Managers is unable to
unanimously agree upon such an accounting firm, DuPont and Central Soya shall
each select such an accounting firm and such accounting firms shall select a
third nationally recognized independent accounting firm, that is not the
principle auditor of any of the Members, to resolve the dispute.  The fees of such accounting firms shall be
borne by the Members in an inverse proportion as they may prevail on the
disputes resolved by such accounting firms. 
Within thirty (30) days following the final determination of the special
allocation as provided in this Section 3.3(aa), the Company shall make a cash
distribution in an amount equal to the amount of such special allocation to the
Member whose Capital Account is affected by such special allocation (the
“Affected Member”); provided, however, that for purposes of calculating the
Affected Member’s Percentage Interest


 


30

















 


during the period beginning on the date of such special allocation and
ending upon the cash distribution as provided in this Section 3.3(aa), the
distribution as provided in this Section 3.3(aa) shall be deemed to have been
made on the date of such special allocation.


 


(bb)         Special Income Allocation.  At the end of each calendar quarter, a
special allocation of income shall be allocated to DuPont in an amount equal to
the sum of (i) the average daily outstanding principal balances during that
quarter of the Finance Loans outstanding times the difference obtained by
subtracting the rates for the Finance Loans for that quarter from a rate
established by an independent financial institution as consented to by DuPont
and Central Soya (which consent shall not be unreasonably withheld) divided by
360 and times the actual number of days in the quarter and (ii) the average
daily outstanding principal balance of the Revolving Loan during the quarter
times the difference obtained by subtracting the rate for the Revolving Loan
for that quarter from a rate established by an independent financial
institution as consented to by DuPont and Central Soya (which consent shall not
be unreasonably withheld) divided by 360 and times the actual number of days in
the quarter.  The amounts so allocated
pursuant to the preceding sentence shall be distributed to DuPont no later than
five (5) business days following the end of the quarter.  Notwithstanding the foregoing, for purposes
of determining DuPont’s Capital Account, the foregoing distribution shall be
deemed to have been made at the time the special allocation was made pursuant
to this Section 3.3(bb).  The Members
hereby acknowledge and agree that the clauses of this Section 3.3(bb) shall
also apply to any other loans from DuPont to the Company, unless the Members
otherwise agree.


 


(cc)         No Allocations.  Notwithstanding anything in this Agreement
to the contrary, no allocations shall be made to the Capital Accounts of DuPont
or Central Soya for any amounts contributed or distributed to DuPont or Central
Soya, as the case may be, as a result of Section 3.03 of the Central Soya
Contribution Agreement or Section 3.03 of the DuPont Indemnity Agreement, as
the case may be.


 


(dd)         To the extent any allocation made under this section 3.3 may be more
properly classified for income tax purposes as having occurred at the Member
level, the characterization of such allocation as an item of “income”,
“expense”, or  “loss” of the Company
shall not necessarily control the characterization of such item for income tax
purposes.


 


3.4           Curative Allocations.


 


The allocations
set forth in Sections 3.3(a) through (g) and 3.5 (the “Regulatory Allocations”)
are intended to comply with certain requirements of the Regulations.  It is the intent of the Members that, to the
extent possible, all Regulatory Allocations shall be offset either with other
Regulatory Allocations or with special allocations of other items of Company
income, gain, loss or deduction pursuant to this Section 3.4. Therefore,
notwithstanding any other provision of this Section 3 (other than the
Regulatory Allocations), the Board of Managers shall make such offsetting
special allocations of Company income, gain, loss or deduction in whatever
manner it determines appropriate so that, after such offsetting allocations are
made, each Member’s Capital Account balance is, to the extent possible, equal
to the Capital Account balance such Member would have had if the Regulatory
Allocations were not part of this Agreement and all Company items were
allocated pursuant to Sections 3.1, 3.2, and 3.3(h).


 


31

















 


3.5           Loss Limitation.


 


Losses allocated
pursuant to Section 3.2 hereof shall not exceed the maximum amount of Losses
that can be allocated without causing any Member to have an Adjusted Capital
Account Deficit at the end of any Allocation Year.  In the event some but not all of the Members would have Adjusted
Capital Account Deficits as a consequence of an allocation of Losses pursuant
to Section 3.2 hereof, the limitation set forth in this Section 3.5 shall be
applied on a Member by Member basis and Losses not allocable to any Member as a
result of such limitation shall be allocated to the other Members in accordance
with the positive balances in such Member’s Capital Accounts so as to allocate
the maximum permissible Losses to each Member under Section 1.704-1
(b)(2)(ii)(d) of the Regulations.


 


3.6           Other Allocation Rules.


 


(a)           For purposes of determining the
Profits, Losses, or any other items allocable to any period, Profits, Losses,
and any such other items shall be determined on a daily basis pro-rata to
Allocation Year pursuant to Code Section 706 and the Regulations thereunder.


 


(b)           The Members are aware of the income
tax consequences of the allocations made by this Section 3 and hereby agree to
be bound by the provisions of this Section 3 in reporting their shares of
Company income and loss for income tax purposes.


 


(c)           Solely for purposes of determining a
Member’s proportionate share of the “excess nonrecourse liabilities” of the
Company within the meaning of Regulations Section 1.752-3(a) (3), the Members’
interests in Company profits are in proportion to their Percentage Interests.


 


To the extent
permitted by Section 1.704-2(h) (3) of the Regulations, the Managers shall
endeavor to treat distributions of Net Cash Flow as having been made from the
proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the
extent that such distributions would cause or increase an Adjusted Capital
Account Deficit for any Member.


 


3.7           Tax Allocations: Code Section 704(c).


 


The Members will
work together in good faith to eliminate, to the extent reasonably possible,
any adverse impact to both Members for allocations under Code Section 704(c)
and the Regulations thereunder on an agreed-to net present value, and, to the
extent practical, on a year-over-year basis. 
The Members in good faith mutually will make these allocation
determinations by August 1, 2003.  If
the Members are unable to agree to these allocations by August 1, 2003, each
Member will appoint two (2) representatives who will meet by August 15, 2003,
with appropriate representatives, to finalize any unresolved determinations
relating to Code Section 704(c) and the Regulations thereunder.


 


Allocations
pursuant to this Section 3.7 are solely for purposes of federal, state, and
local taxes and shall not affect, or in  any way be taken into account in
computing, any


 


32

















 


Member’s Capital Account or share of Profits, Losses, other items, or
distributions pursuant to any provision of this Agreement.


 


Section 4:  Distributions


 


4.1           Net Cash Flow.


 


Except as
otherwise provided in Section 12 hereof and unless otherwise agreed to by the
Members, Net Cash Flow, if any, shall be distributed on an annual basis not later
than the ninetieth (90th) day after the end of each Fiscal Year, to
the Members in proportion to their respective Percentage Interests, except that
during the period ending two (2) years after the Effective Time, no
distribution shall be made to any Member that is in excess of such Member’s
Percentage Interest of Operating Cash Flow.


 


4.2           Amounts Withheld.


 


All amounts
withheld pursuant to the Code or any provision of any state, local or foreign
tax law with respect to any payment, distribution or allocation to the Company
or the Members shall be treated as amounts paid or distributed, as the case may
be, to the Members with respect to which such amount was withheld pursuant to
this Section 4.2 for all purposes under this Agreement.  The Company is authorized to withhold from
payments and distributions, or with respect to allocations to the Members, and
to pay over to any federal, state and local government or any foreign
government, any amounts required to be so withheld pursuant to the Code or any
provisions of any other federal, state or local law or any foreign law, and
shall allocate any such amounts to the Members with respect to which such
amount was withheld.


 


4.3           Limitations on Distributions.


 


(a)           The Company shall make no
distributions to the Members except (i) as provided in Section 3.3, this
Section 4 or Section 12 hereof, or (ii) as consented to in writing by a
majority of the Members.


 


(b)           Notwithstanding anything in this
Section 4 to the contrary, the Company shall not be obligated to make, and
shall not make, any distribution to a Member to the extent that, at the time of
the distribution, after giving effect to the distribution, all liabilities of
the Company, other than liability to Members on account of their Capital
Contributions, would exceed the fair market value of the Company’s assets.


 


Section 5:  Role Of Members


 


5.1           Rights or Powers.


 


The Members shall
not have any right or power to take part in the management or control of the
Company or its business and affairs or to act for or bind the Company in any
way.  Notwithstanding the foregoing, the
Members have all of the rights and powers specifically set forth in this
Agreement and, to the extent not inconsistent with this Agreement, in the Act.


 


33

















 


5.2           Voting Rights.


 


No Member has any
voting or consenting right except with respect to those matters specifically
reserved for a Member vote or consent which are set forth in this Agreement and
as required by the Act.  Each Member’s respective
percentage of the total voting or consenting rights of all of the Members shall
be equal to such Member’s respective Percentage Interest at the time of a vote
or written consent.


 


5.3           Member Vote and Consent.


 


(a)           Whenever the vote or consent of
Members is permitted or required under this Agreement, such vote or consent may
be given in person at a meeting by a duly authorized representative, in writing
or by facsimile.


 


(b)           Unless otherwise expressly provided
in this Agreement, Members who have an interest (economic or otherwise) in the
outcome of any particular matter upon which the Members vote or consent, may
vote or consent upon any such matter and their vote or consent, as the case may
be, shall be counted in the determination of whether the particular matter is
approved by the Members.  The Members
shall be entitled to vote or consent in a manner consistent with their own
interests when such interests are not, or may not be, consistent with the
interests of the Company or the Members as a whole.


 


5.4           Unanimous Member Consent


 


No action may be taken by the Company (whether by the Board of
Managers, or otherwise) in connection with any of the following matters without
the unanimous consent of the Members:


 


(a)                                  Acts
in contravention of this Agreement;


 


(b)                                 Any
acquisitions by the Company (by purchase, contribution or exchange) in excess
of 20% of the fair market value of the Company’s total assets (except with
respect to the Shares);


 


(c)                                  Disposition
or divestiture by the Company of all or substantially all of the Business;


 


(d)                                 Issuance
or incurrence of Debt by the Company in excess of 20% of the fair market value
of the total assets of the Company;


 


(e)                                  Issuance
of additional Membership Interests by the Company (which shall not be deemed to
include the issuance of additional Interests to an existing Member made
pursuant to a Capital Call, the issuance of additional Interests to Central
Soya upon the proper exercise of the Central Soya Purchase Option or the
Central Soya


 


34

















 


Grace Period Option or the issuance of additional
Interests to DuPont upon the proper exercise of the DuPont Purchase Option);


 


(f)                                    Redemptions
of Membership Interests by the Company;


 


(g)                                 Mergers
or consolidations of the Company with or into any other Person;


 


(h)                                 Voluntary
Bankruptcy of the Company;


 


(i)                                     Possession
or use of Company Property or any other property used by the Company, whether
real or personal, for other than a Company purpose;


 


(j)                                     Change
in the tax treatment of the Company;


 


(k)                                  Amendment
of this Agreement;


 


(l)                                     A
material change in the nature or scope of the Business;


 


(m)                               Any
transaction between the Company and any Member or Affiliate of any Member; or


 


(n)                                 Any
transaction to liquidate or dissolve the Company.


 


Notwithstanding the
foregoing, if at any point in time after the Grace Period, Central Soya’s
Percentage Interest (including the Percentage Interest, if any, of Bunge
Limited and its Affiliates) (i) is less than twenty percent (20%), then the
taking of any action in connection with any or all of the matters set forth in
clauses (a) through (n) above shall require only the consent of Members having
a Percentage Interest in excess of fifty percent (50%); provided, however, that
this Agreement shall not be amended (without the unanimous consent of the
Members) to amend or eliminate Sections 1.4(c), 3.3(i) through 3.3(cc), 6.1(h),
6.3(a)(xiii), 11.2 or 11.4 (provided, however, that for purposes of Central
Soya’s right of first offer as provided in Section 11.4, the Offer Period shall
be thirty (30) days); and provided, further, that the Company shall not enter
into any transaction with a Member (or Affiliate of a Member) that is not on an
arm’s length basis without the consent of the Members.


 


5.5           Withdrawal/Resignation.


 


Except as otherwise provided in Section 4 (including, but not limited
to, Section 4.3(a)), Section 11, or Section 12 hereof, no Member shall demand
or receive a return on or of its Capital Contributions or withdraw from the
Company without the consent of the Members. 
Except as otherwise provided in the Act or this Agreement, upon
resignation, any resigning Member is entitled to receive only the distribution
to which he or she is entitled under this Agreement, and shall not be entitled
to receive the fair value of its Membership Interest in the Company as of the
date of resignation.  Under
circumstances requiring a return of any Capital


 


35

















 


Contributions, no Member has the right to receive Property other than
cash except as may be specifically provided herein.


 


5.6           Member Compensation.


 


Except as otherwise provided in this Agreement, the Related Agreements
or any other written agreement between the Company and one or more of the
Members, no Member shall (a) receive any interest or drawing with respect to
its Capital Contributions or its Capital Account or for services rendered on
behalf of the Company, or otherwise, in its capacity as a Member, or (b) have
any priority over any other Member for any return of its Capital Contributions
or Capital Account or any distributions made pursuant to Section 4 hereof;
provided, however, that the restriction contained in this Section 5.6 shall not
apply to loans (as distinguished from Capital Contributions) which a Member has
made to the Company in accordance with this Agreement, if any.


 


5.7           Members Liability.


 


No Member shall be liable under a judgment, decree, or order of a
court, or in any other manner for the Debts or any other obligations or
liabilities of the Company.  Except as
otherwise provided in this Agreement, a Member shall be liable only to make its
Capital Contributions and shall not be required to restore a deficit balance in
its Capital Account or to lend any funds to the Company or, after its Capital
Contributions have been made, to make any additional contributions, assessments
or payments to the Company; provided that a Member may be required to repay
distributions made to it as provided in Section 18-607 of the Act.  In exercising its rights as a Member, the
fiduciary duties of each Member to the Company or to the other Members (if and
to the extent such a duty exists by statute, in equity, at common law or
otherwise) are hereby restricted and modified to the fullest extent permitted
by law and such Member shall be permitted to consider or not consider any
interests or factors in connection with any decision or vote by the Members
hereunder as such Member desires to consider including, without limitation, its
own interests with no duty or obligation to consider the interests of the
Company or any other Member.


 


5.8           Partition.


 


While the Company remains in effect or is continued, each Member agrees
and waives its rights to have any Property partitioned, or to file a complaint
or to institute any suit, action or proceeding at law or in equity to have any
Property partitioned, and each Member, on behalf of itself, its successors and
its assigns hereby waives any such right.


 


5.9           Confidentiality.


 


Except as contemplated hereby or required by a court of competent
authority, so long as the Company remains in existence and for a period of five
(5) years following any termination of this Agreement or the dissolution of the
Company, each Member shall keep confidential and shall not disclose to others
and shall use its reasonable best efforts to prevent its Affiliates and any of
its, or its Affiliates’, present or former employees, agents, and


 


36

















 


representatives from disclosing to others without the prior written consent
of the Members any confidential information which (i) pertains to this
Agreement or the Related Agreements, any negotiations pertaining hereto or
thereto, any of the transactions contemplated hereby or thereby, or the
Business, or (ii) pertains to confidential or proprietary information of any
Member or the Company.  No Member shall
use, and each Member shall use its reasonable best efforts to prevent any
Affiliate of such Member from using, any information which (i) pertains to this
Agreement or the Related Agreements, any negotiations pertaining hereto or
thereto, any of the transactions contemplated hereby or thereby, or the
Business, or (ii) pertains to the confidential or proprietary information of
any Member or the Company, except in connection with the transactions
contemplated by this Agreement or the Related Agreements.  The term “confidential information” is used
in this Section 5.9 to describe information which is confidential, non-public
or proprietary in nature, was provided to such Member or its representatives by
the Company, any other Member, or such Persons’ agents, representatives and
employees, and relates either directly, or indirectly to the Company, the
business of any other Member, or the Business. 
Information which (i) is available, or becomes available, to the public
through no fault or action by such Member, its agents, representatives or
employees, (ii) becomes available on a non-confidential basis from any source
other than the Company, any other Member, or such Persons’ agents,
representatives or employees and such source is not prohibited from disclosing
such information, or (iii) is already known to the receiving party before
receipt from the other party as evidenced by the receiving party’s written
records, shall not be deemed confidential information.


 


5.10         Transactions
between a Member and the Company.


 


Except as
otherwise provided herein (including, without limitation, Section 1.10 (c)), in
the Related Agreements, or by applicable law, any Member may, but shall not be
obligated to, lend money to the Company, act as surety for the Company and
transact other business with the Company and shall have the same rights and
obligations when transacting business with the Company as a Person who is not a
Member.  A Member, any Affiliate thereof
or any employee, stockholder, agent, director or officer of any Member or any
Affiliate thereof, may also be an employee or be retained as an agent of the
Company.  The existence of these
relationships and acting in such capacities will not result in a Member being
deemed to be participating in the control of the business of the Company or
otherwise affect the limited liability of such Member.


 


5.11         Other
Instruments.


 


Each Member hereby
agrees to execute and deliver to the Company within five (5) days after receipt
of a written request therefor, such other and further reasonable documents and
instruments, statements of interest and holdings, designations, powers of
attorney and other instruments and to take such other action as the Board of Managers
deems necessary, useful or appropriate to comply with any laws, rules or
regulations as may be necessary to enable the Company to fulfill its
responsibilities under this Agreement.


 


Section
6:  Management


 


6.1           Managers; Board of
Managers.


 


37

















 


(a)           Except
as otherwise provided in this Agreement, the management of the Company shall be
vested in a Board of Managers appointed by the Members as provided in Sections
6.1(b) and 6.1(c) hereof (the “Board of Managers”).  Except as expressly set out in Sections 1.4, 2.3, 4.3, 5.4, 5.5,
5.9, 6.1(c), 9.3, 11.1, 11.2 or 12.1 of this Agreement, no Member shall have
the power to approve, consent to, vote on or otherwise manage the activities,
policies or the business of the Company or the other Members, nor will a
Member’s approval or consent be required for any activity taken by the Company
or another Member, and the Board of Managers shall have the power to approve
and manage the activities, policies and business of the Company by a majority
vote of the Managers.


 


(b)           The
number of Managers on the Board of Managers shall be four (4) unless otherwise
provided herein.  DuPont and Central
Soya, by signing this Agreement, hereby appoint the Persons identified on
Exhibit B hereto as the Managers of the Company until their successors are
appointed, each such Manager being deemed appointed by the Member set forth
opposite the name of such Manager.


 


(c)           Except
as otherwise provided herein, during the Initial Period and the Grace Period,
each of DuPont and Central Soya shall have the right to appoint one-half (1/2)
of the Managers to serve on the Board of Managers.  DuPont and Central Soya shall appoint Managers, other than the
Managers identified on Exhibit B as provided in Section 6.1(b) above, by
delivering to the Company a written statement appointing their Manager or
Managers and setting forth such Manager’s or Managers’ business address and
telephone number.  Each of DuPont and
Central Soya shall have the right to appoint one (1) non-voting advisor to the
Board of Managers (the “Advisor”), with the consent of the other Members.  In no event shall an Advisor be considered
or deemed to be a “Manager” (as that term is used in this Agreement) and the
Advisors shall not have any right to vote on, consent to or otherwise approve
any activity or policy of the Company or any activity or policy taken or
adopted by the Members or the Board of Managers with respect to the Company.


 


(d)           A
Manager or Advisor may be removed at any time, with or without cause, by the
written notice of the Member that appointed such Manager or Advisor, delivered
to the Company, notifying of such removal and appointing the Person who shall
fill the position of the removed Manager or Advisor.


 


(e)           In
the event any Manager or Advisor dies or is unwilling or unable to serve in the
appointed capacity, the Member that appointed such Manager or Advisor shall
promptly appoint a successor to such Manager or Advisor.


 


(f)            The
Board of Managers shall have a Chairman (the “Chairman”).  The Chairman shall be one of DuPont’s
appointees to the Board of Managers as determined by DuPont.  DuPont hereby appoints J. Erik Fyrwald as
the initial Chairman of the Board of Managers.


 


(g)           Except
as provided in Section 6.1(k)(i) of this Agreement, each Manager shall have one
(1) vote.


 


38

















 


(h)           Anything
contained herein to the contrary notwithstanding, if at
anytime following the Grace Period, Central Soya’s Percentage Interest
shall be less than twenty percent (20%), the terms of all of the current
Managers appointed by Central Soya, and the term of the current Advisor
appointed by Central Soya, shall cease; provided, however, that as long as
Central Soya’s Percentage Interest is greater than ten percent (10%) but less
than twenty percent (20%), there shall be one (1) Manager appointed by Central
Soya to remain on the Board of Managers.  Any vacancy on the Board of
Managers created as a result of a reduction in Central Soya’s Percentage Interest
pursuant to this Section 6.1(h) shall be filled by a Manager appointed by
DuPont.


 


(i)            In
performing his or her duties as a Manager, each Manager shall have a fiduciary
duty to act in a manner he or she reasonably believes to be in the best
interests of the Company, and with such care as an ordinarily prudent person in
a like position would use under similar circumstances.  Such fiduciary duties shall include, but not
be limited to, the duty to safekeep all of the Property of the Company and to
use the same for the exclusive benefit of the Company generally, and to
otherwise act in good faith with respect to the Company generally, which shall
be construed to prohibit a Manager from acting in any manner intentionally or
specifically directed at harming the Company. 
In performing his or her duties as a Manager, the fiduciary duties of
each Manager to a Member or the Members (whether existing by statute, in
equity, at common law or otherwise) are hereby restricted and modified to the
fullest extent permitted by law to consist of the duty to safekeep all of the
Property of the Company and to use the same for the benefit of the Company and
to otherwise act in good faith with respect to the Company generally, which
shall be construed to mean and to permit acting in any manner and considering
or not considering any interests or factors in connection with any transaction
or matter whatsoever as such Manager desires with no duty to consider the
interests of any Member so long as such Manager acts in a manner that he or she
reasonably believes to be in the best interest of the Company and does not act
in a manner intentionally or specifically directed solely at harming a
Member.  A Manager of the Company who
performs his/her duties in accordance with this Section 6.1(i) shall not have
any liability by reason of being or having been a Manager of the Company.  A Manager does not, in any way, guarantee
the return of the Members’ Capital Contributions or a Profit for the Members
from the operations of the Company.  A Manager
shall not be liable to the Company or any Member for any loss or damage
sustained by the Company or any Member unless the loss or damage shall have
been the result of fraud, deceit, or willful misconduct.  A Manager shall not have any personal liability
for the repayment of any Capital Contributions of any Member.  No Manager shall be liable under a judgment,
decree, or order of a court, or in any other manner for the Debts or any other
obligations or liabilities of the Company.


 


(j)            The
Board of Managers shall have the power to create committees of the Board of
Managers with such powers and authority as shall be delegated to such
committees by the Board of Managers, provided that no such delegation shall
prevent the Board of Managers from acting with respect to delegated
matters.  In addition, the Board of
Managers shall have the power to delegate authority to such officers,
employees, agents, and representatives of the Company as it may from time to
time deem appropriate and any action taken by such Persons or Persons must be
approved in the same manner as would be required for the Board of Managers to
approve such action directly. 
Notwithstanding the foregoing and


 


39

















 


except as otherwise provided in this Agreement, the Board of Managers
reserves the following powers and authority to itself:


 


(i)            To set the overall policy and vision
of the Company in accordance with this Agreement;


 


(ii)           Subject to Section 6.1(k) hereof, to
elect, appoint or terminate any officers of the Company;


 


(iii)          To approve the business and strategic
plans and annual operating and financing plans of the Company, including annual
investment budgets;


 


(iv)          To approve and modify the accounting
policies of the Company (the “Accounting Policies”); provided that at all times
during the term of this Agreement the Accounting Policies are in accordance
with GAAP and SEC Requirements; and provided further that the Company shall
provide each Member with prior notice of any modification to the Accounting
Policies.  If the Board of Managers
receives written notice from a Member prior to any modification of the
Accounting Policies that such modification as proposed would have a material
adverse effect on such Member, the Board of Managers shall reconsider such
proposed modification in light of such material adverse effect;


 


(v)           To approve from time to time the
location of the Company’s headquarters;


 


(vi)          Subject to the provisions of Section
1.3, to approve any changes to the name of the Company or any names under which
it shall do business;


 


(vii)         To determine the banking, financing,
capital and risk investment policies of the Company and further in that regard:


 


(1)           To grant financial authorization
(including the opening and closing of bank accounts and to designate
signatories for such accounts) to any Manager or officer of the Company;


 


(2)           To approve the purchase of liability
and other insurance to protect the Company’s property and business;


 


(3)           To approve the ethics, safety and
health, treatment of people and environmental policies of the Company;


 


(4)           To approve the acquisition or
disposition of patents, trademarks and other intellectual property rights and
licenses thereof; and


 


(5)           To approve the internal control
standards that enable the Company to operate effectively, efficiently and
ethically.


 


40

















 


(k)           The Members hereby create the offices
of Chairman, Chief Executive Officer and Chief Financial Officer (collectively,
the “Officers”).  The responsibilities
of the Officers shall be as set forth in this Section 6.1(k), and as determined
by the Board of Managers.


 


(i)            Except as otherwise provided in
Section 11.10 hereof, DuPont shall have the sole power to appoint the
Chairman.  In the event the Board of
Managers is not able to reach a decision on any matter properly brought before
it because the votes of the Managers thereof result in a tie vote (a “Deadlock
Matter”), a deadlock shall be deemed to exist (a “Deadlock”).  Upon the occurrence of a Deadlock, the
Chairman shall have the power and right in his or her sole and absolute
discretion to resolve the Deadlock by approving or disapproving the Deadlock
Matter.  Notwithstanding the foregoing,
no Deadlock shall exist when an express unanimous consent of the Board of
Managers is required hereunder or under the Related Agreements.  For the avoidance of doubt, the Chairman
shall not be entitled to break a Deadlock with respect to the Board of
Managers’ decision to retain the Chief Executive Officer and Chief Financial
Officer as provided in Section 6.1(k)(iv) below.


 


(ii)           Except as otherwise provided in Section 11.10 hereof,
DuPont shall have the power to designate and appoint the Chief Executive
Officer of the Company (the “Chief Executive Officer”), subject to the approval
of the Board of Managers.  The Board of
Managers shall determine the necessary qualifications for the office of Chief
Executive Officer and the Person designated and appointed for such office shall
meet such qualifications.  The Board of
Managers shall determine the powers and duties of the Chief Executive Officer.


 


(iii)          Except as otherwise provided in
Section 11.10 hereof, Central Soya shall have the power to designate and
appoint the Chief Financial Officer of the Company who shall report to the
Chief Executive Officer (the “Chief Financial Officer”), subject to the
approval of the Board of Managers.  The
Board of Managers shall determine the necessary qualifications for the office
of Chief Financial Officer and the Person designated and appointed for such
office shall meet such qualifications. 
The Board of Managers shall determine the powers and duties of the Chief
Financial Officer; provided, however, that the powers and duties of the Chief
Financial Officer shall be substantially consistent with those powers and
duties of similarly situated Persons that are customary to the industry in
which the Company operates.


 


(iv)          If, after the Initial Period, the
Business is not operating within eighty percent (80%) of the Company’s business
plan with respect to the Company’s operating income and return on investment
(as those terms are defined in the business plan), the Board of Managers shall
remove and replace the Chief Executive Officer and Chief Financial Officer
unless the Board of Managers unanimously agrees to retain such Officers.  Upon the removal of the Chief Executive
Officer and Chief Financial Officer, the Board of Managers shall search for
successors to such Officers and may, in its discretion, engage the services of
a search firm to assist with its search efforts.


 


41

















 


The search for such successors shall not be limited to
employees of DuPont, Central Soya, or their respective Affiliates; provided,
however, that DuPont, Central Soya and their respective Affiliates may nominate
and recommend to the Board of Managers candidates to replace such removed
Officers.


 


(v)           The Company’s compensation structure
shall be designed to maximize the performance of the Company and all incentive
compensation paid to employees of the Company (including, but not limited to,
the Officers) shall be based upon the Company’s performance.


 


(vi)          The Chief Executive Officer and Chief Financial Officer
shall be responsible for conducting, in the name and on behalf of the Company,
the day-to-day business and affairs of the Company.


 


(vii)         The Board of Managers shall have the power to create such
other officer positions with such powers as it deems appropriate as shall be
determined by the Board of Managers consistent with the terms of this
Agreement.  The Board of Managers shall
have the power to appoint persons to fill such officer positions.


 


(l)            The terms of the Related Agreements
are hereby approved and each Manager is hereby authorized to execute and deliver
the Related Agreements on behalf of the Company.


 


6.2           Meetings of the Board of Managers.


 


(a)           The
Board of Managers shall hold regular meetings no less frequently than once
every Fiscal Quarter and the Chairman shall establish meeting times, dates and
places and requisite notice requirements (not shorter than those provided in
Section 6.2(c) below) and adopt rules or procedures consistent with the terms
of this Agreement.  Unless otherwise
approved by the Chairman, each regular meeting of the Board of Managers will be
held at the Company’s principal place of business.


 


(b)           At
all meetings of the Board of Managers, the presence of at least one Manager
appointed by Central Soya and one Manager appointed by DuPont shall be
necessary to constitute a quorum for the transaction of business and, except as
otherwise provided in this Agreement (including, without limitation, Section
6.1(k)(i) hereof), the Board of Managers shall act by the majority vote of the
Managers at any meeting at which a quorum is present.  Notwithstanding the foregoing, if a quorum shall not be present
at any meeting of the Board of Managers, the Managers present thereat may
adjourn and reschedule the meeting to a date no earlier than five (5) days
thereafter with notice in accordance with Section 6.2(c).  At the rescheduled meeting, the Managers
present thereat shall constitute a quorum for the transaction of business.


 


(c)           Special
meetings of the Board of Managers may be called only by the Chairman.  Notice of each such meeting shall be given
to each Manager on the Board of Managers by telephone, telecopy, telegram or
similar method (in each case, notice shall be given


 


42

















 


at least seventy-two (72) hours before the time of the meeting) or sent
by first-class mail (in which case notice shall be given at least five (5) days
before the meeting), unless a longer notice period is established by the Board
of Managers.  Each such notice shall
state (i) the time, date, place (which shall be at the principal office of the
Company unless otherwise agreed to by all Managers) or other means of
conducting such meeting and (ii) the purpose of the meeting to be so held.  No actions other than those specified in the
notice may be considered at any special meeting unless unanimously approved by
the Managers.  Any Manager may waive
notice of any meeting in writing before, at, or after such meeting.  The attendance of a Manager at a meeting
shall constitute a waiver of notice of such meeting, except when a Manager
attends a meeting for the express purpose of objecting to the transaction of
any business because the meeting was not properly called.


 


(d)           Any
action required to be taken at a meeting of the Board of Managers, or any
action that may be taken at a meeting of the Board of Managers, may be taken at
a meeting held by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other.  Participation in such a
meeting shall constitute presence in person at such meeting.


 


(e)           Notwithstanding
anything to the contrary in this Section 6.2, the Board of Managers may take
without a meeting any action that may be taken by the Board of Managers under
this Agreement if such action is approved by the unanimous written consent of
the Managers.


 


6.3           Board
of Managers Powers.


 


(a)           Except
as otherwise provided in this Agreement (including but not limited to Section
5.4 hereof), all powers to control and manage the Business and affairs of the
Company shall be exclusively vested in the Board of Managers and the Board of
Managers may exercise all powers of the Company and do all such lawful acts as
are not by statute, the Certificate or this Agreement directed or required to
be exercised or done by one or more of the Members and in so doing shall have
the right and authority to take all actions which the Board of Managers deems
necessary, useful or appropriate for the management and conduct of the
Business, including exercising the following specific rights and powers:


 


(i)            Conduct its business and/or its
Affiliates’ businesses, carry on their operations and have and exercise the
powers granted by the Act in any state, territory, district or possession of
the United States, or in any foreign country which may be necessary or
convenient to effect any or all of the purposes for which it is organized;


 


(ii)           Acquire by purchase, lease, or
otherwise any real or personal property which may be necessary, convenient, or
incidental to the accomplishment of the purposes of the Company;


 


(iii)          Operate, maintain, finance, improve,
construct, own, grant operations with respect to, sell, convey, assign,
mortgage, and lease any real estate and


 


43

















 


any personal
property necessary, convenient, or incidental to the accomplishment of the
purposes of the Company;


 


(iv)          Execute, or authorize any officer or
officers to execute, any and all agreements, contracts, documents,
certifications, and instruments necessary or convenient in connection with the
management, maintenance, and operation of the Business, or in connection with
managing the affairs of the Company, including, executing amendments to this
Agreement and the Certificate in accordance with the terms of this Agreement, both
as Managers and, if required, as attorney-in-fact for the Members pursuant to
any power of attorney granted by the Members to the Managers;


 


(v)           Borrow money and issue evidences of
indebtedness necessary, convenient, or incidental to the accomplishment of the
purposes of the Company, and secure the same by mortgage, pledge, or other lien
on any Company assets;


 


(vi)          Execute, in furtherance of any or all
of the purposes of the Company, any deed, lease, mortgage, deed of trust,
mortgage note, promissory note, bill of sale, contract, or other instrument
purporting to convey or encumber any or all of the Company assets;


 


(vii)         Prepay in whole or in part, refinance,
recast, increase, modify, or extend any liabilities affecting the assets of the
Company and in connection therewith execute any extensions or renewals of
encumbrances on any or all of such assets;


 


(viii)         Distribute funds to the Members by way
of cash income, return of capital, or otherwise, all in accordance with the
provisions of this Agreement, and perform all matters in furtherance of the
objectives of the Company or this Agreement;


 


(ix)           Contract on behalf of the Company for
the employment and services of employees and/or independent contractors, such
as lawyers and accountants;


 


(x)            Engage in any kind of activity and
perform and carry out contracts of any kind (including contracts of insurance
covering risks to Company assets and Manager liability) necessary or incidental
to, or in connection with, the accomplishment of the purposes of the Company,
as may be lawfully carried on or performed by a limited liability company under
the laws of each state in which the Company is then formed or qualified;


 


(xi)           Take, or refrain from taking, all
actions, not expressly prescribed or limited by this Agreement, as may be
necessary or appropriate to accomplish the purposes of the Company;


 


44

















 


(xii)          Institute, prosecute, defend, settle,
compromise, and dismiss lawsuits or other judicial or administrative proceedings
brought on or in behalf of, or against, the Company or any Manager in
connection with activities arising out of, connected with, or incidental to
this Agreement, and to engage counsel or others in connection therewith;


 


(xiii)         Institute or prosecute lawsuits or
other judicial or administrative proceedings brought against the Members in
connection with activities arising out of, connected with, or incidental to
this Agreement, and to engage counsel or others in connection therewith;
provided, however that if one or more Managers believes in good faith that the
Company should institute or prosecute a lawsuit or other judicial or
administrative proceeding against a Member, the matter shall first be submitted
to the Chief Executive Officers of each of the Members for resolution.  In the event such Chief Executive Officers
are unable to agree upon a resolution within sixty (60) days following such
submission, the issue whether or not to institute or prosecute such lawsuit or
other judicial or administrative proceeding shall be submitted to a vote of the
Managers appointed by the Member(s) who is not the subject of the proposed
lawsuit or proceeding and shall be approved upon the affirmative vote of a
majority of such Managers;


 


(xiv)         Employ, sell, mortgage, lend, pledge,
or otherwise dispose of, and otherwise use and deal in and with, shares or
other interests in or obligations of any Person, or direct or indirect
obligations of the United States or of any government, state, territory,
government district or municipality or of any instrumentality of any of them;


 


(xv)         Indemnify a Manager or former Manager,
and to make any other indemnification that is authorized by this Agreement in
accordance with the Act;


 


(xvi)        Establish
policies and guidelines for the hiring of employees to permit the Company to
act as an operating company with respect to its Business, and adopt appropriate
management incentive plans and employee benefit plans; and


 


(xvii)       Appoint,
contract, or remove the external independent accountants responsible for
auditing the books and records of the Company, and opining on the integrity of
the financial statements prepared by the Company to meet external reporting
requirements.


 


6.4           Duties and Obligations of the Board of
Managers.


 


(a)           Except as may be provided in the
Related Agreements, the Board of Managers shall cause the Company to conduct
its business and operations separate and apart from that of any other Person,
including, without limitation, (i) segregating Company assets and bank accounts
and not allowing funds or other assets of the Company to be commingled with the
funds or other assets of, held by, or registered in the name of, any other
Person, (ii) maintaining books and financial records of the Company separate
from the books and financial records of any


 


45

















 


other Person, and
observing all Company procedures and formalities, including, without
limitation, maintaining minutes of meetings and acting on behalf of the Company
only pursuant to due authorization of the Members, (iii) paying its liabilities
from assets of the Company, (iv) conducting its dealings with third parties in
its own name and as a separate and independent entity, (v) maintaining its
assets in such a manner that minimizes the cost and difficulty of segregating,
ascertaining or otherwise identifying its assets from those of any other
Person, and (vi) abiding by all formalities under the Act with respect to
causing the Company’s financial statements to be prepared in accordance with
GAAP and in a manner that indicates the separateness of the Company and the
Company’s assets and liabilities from any other Person.


 


(b)           Except as otherwise provided in this
Agreement, the Board of Managers shall take all actions which may be necessary
or appropriate (i) for the continuation of the Company’s valid existence as a
limited liability company under the laws of the State of Delaware and of each
other jurisdiction in which such existence is necessary to protect the limited
liability of the Members or to enable the Company to conduct the business in
which it is engaged and (ii) for the accomplishment of the Company’s purposes,
including the acquisition, development, maintenance, preservation, and
operation of Property in accordance with the provisions of this Agreement and
applicable laws and regulations.  The
Board of Managers shall cause the Company to implement the core values and
policies of the Members regarding safety, health, environment, ethics and
treatment of people in a manner which preserves the underlying objectives of
the core values and policies and optimizes the operating performance of the
Company.


 


Section 7:  Protection of Members,


Managers, and Officers.


 


7.1           Protected
Party.


 


As used in this
Agreement, the term “Protected Party” refers to the Members, the Managers, the
Advisors and the officers of the Company.


 


7.2           General
Protection.


 


(a)           A Protected Party shall be fully
protected in relying in good faith upon the records of the Company and upon
such information, opinions, reports or statements presented to the Company by
any Person as to the matters the Protected Party reasonably believes are within
such other Person’s professional or expert competence and who has been selected
with reasonable care by or on behalf of the Company, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, Profits or Losses of the Company or any other facts pertinent to
the existence and amount of assets from which distributions to Members might
properly be paid pursuant to Section 4 hereof.


 


(b)           To the extent that, at law or in
equity, a Protected Party has duties (including fiduciary duties) and
liabilities relating thereto to the Company or to any other Protected Party, a
Protected Party acting under this Agreement shall not be liable to the Company,
to any other Protected Party or to any third party for its good faith reliance
on the


 


46

















 


provisions of this
Agreement.  The provisions of this
Agreement, to the extent that they restrict or expand the duties and
liabilities of a Protected Party otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Protected Party to the extent permissible under applicable law.


 


(c)           Whenever in this Agreement a
Protected Party is permitted or required to make a decision (i) in its
“discretion” or under a grant of similar authority or latitude, the Protected
Party shall be entitled to consider such interests and factors as it desires
including its own interests and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Company or any other
Person, or (ii) in its “good faith” or under another express standard, the
Protected Party shall act under such express standard and shall not be
subjected to any other or different standard imposed in this Agreement or other
applicable law; provided, however, that notwithstanding the foregoing, in the
case of a Manager’s conduct, the express standards set forth in this Section
7.2(c) shall be governed by Section 6.1(i) hereof.


 


7.3           Indemnification
and Insurance


 


(a)           Each Person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative or
otherwise and whether formal or informal (hereinafter a “Proceeding”), by
reason of the fact that he or she, or the Person of which he or she is the
legal representative, is or was a Manager, officer, employee or agent of the
Company or is or was serving at the request of the Company as a Manager,
officer or other agent of the Company, where the basis of such Proceeding is
alleged action in an official capacity as a Manager, officer, employee or
agent, shall be indemnified and held harmless by the Company; provided,
however, that there shall be no indemnification of any such Person as to
matters in respect of which it shall be finally adjudged in such action that such
Person has committed an act of fraud, deceit, or willful misconduct.


 


(b)           The right to indemnification
conferred by this Section 7 shall include the right to require the Company to
pay the expenses (including reasonable attorneys’ fees) incurred in defending
any such Proceeding in advance of its final disposition; provided, however,
that the Company shall not be required to pay such expenses (including
attorneys’ fees) with respect to a Proceeding initiated against the Company by
any Manager, officer, employee or agent of the Company unless such Proceeding
was authorized by the Board of Managers.


 


(c)           The right to indemnification and the
advancement of expenses conferred in this Section 7 shall not be exclusive of
any other right which any Person may have or hereafter acquire under any
statute, provision of this Agreement or the Related Agreements, contract,
agreement, vote or consent of the Members or disinterested Managers or
otherwise.  The Managers are expressly
authorized to adopt and enter into indemnification agreements for Managers and
officers.


 


(d)           The Board of Managers may cause the
Company to purchase and maintain insurance on behalf of any Person who is or
was or has agreed to become a Manager, officer, employee or other agent of the
Company or is or was serving at the request of the


 


47

















 


Company as a
Manager, officer, employee or other agent of the Company, against any liability
asserted against such Person and incurred in any such capacity or arising out
of such status. A Manager shall not be entitled to coverage under the
directors’ and officers’ insurance policy of the Member who did not appoint
such Manager.


 


7.4           Amendments
to this Section 7.


 


No amendment,
repeal or modification of this Section 7 shall adversely affect any rights
hereunder with respect to any act or omission occurring prior to the date when
such amendment, repeal or modification became effective.


 


Section
8: Representations and
Warranties.


 


8.1           In General.


 


As of the date hereof,
each of Members hereby makes each of the


representations
and warranties applicable to such Member as set forth in Section 8.2, and such
warranties and representations shall survive the execution of this Agreement
for a period of three (3)  years
following the Effective Time.


 


8.2                 Representations and Warranties.


 


Each Member hereby
represents and warrants that:


 


(a)           Due Incorporation or Formation;
Authorization of Agreement.  Such
Member is a corporation duly organized or a partnership or limited liability
company duly formed, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or formation and has the corporate,
partnership, or company power and authority to own its property and carry on
its business as owned and carried on as of the date hereof and as contemplated
hereby.  Such Member is duly licensed or
qualified to do business and in good standing in each of the jurisdictions in
which the failure to be so licensed or qualified would have a material adverse
effect on its financial condition or its ability to perform its obligations
hereunder.  Such Member has the
corporate, partnership or company power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and the execution,
delivery, and performance of this Agreement has been duly authorized by all
necessary corporate, partnership, or company action.  This Agreement constitutes the legal, valid and binding
obligation of such Member.


 


(b)           No Conflict with Restrictions; No
Default.  Neither the execution,
delivery, nor performance of this Agreement nor the consummation by such Member
of the transactions contemplated hereby (i) will conflict with, violate, or
result in a breach of any of the terms, conditions, or provisions of any law,
regulation, order, writ, injunction, decree, determination, or award of any
court, any governmental department, board, agency, or instrumentality, domestic
or foreign, or any arbitrator, applicable to such Member or any of its Wholly
Owned Affiliates, (ii) will conflict with, violate, result in a breach of, or
constitute a default under any of the terms, conditions, or provisions of the
articles of incorporation, bylaws,


 


48

















 


partnership
agreement or operating agreement of such Member or any of its Wholly Owned
Affiliates or of any material agreement or instrument to which such Member or
any of its Wholly Owned Affiliates is a party or by which such Member or any of
its Wholly Owned Affiliates is or may be bound or to which any of its material
properties or assets is subject, (iii) will conflict with, violate, result in a
breach of, constitute a default under (whether with notice or lapse of time or
both), accelerate or permit the acceleration of the performance required by,
give to others any material interests or rights, or require any consent,
authorization, or approval under any indenture, mortgage, lease agreement, or
instrument to which such Member or any of its Wholly Owned Affiliates is a
party or by which such Member or any of its Wholly Owned Affiliates is or may
be bound, or (iv) will result in the creation or imposition of any lien upon
any of the material properties or assets of such Member or any of its Wholly
Owned Affiliates.


 


(c)           Governmental Authorizations.  Any registration, declaration, or filing
with, or consent, approval, license, permit, or other authorization or order
by, any governmental or regulatory authority, domestic or foreign, that is
required in connection with the valid execution, delivery, acceptance and
performance by such Member under this Agreement or the consummation by such
Member of any transaction contemplated hereby has been completed, made, or
obtained on or before the Effective Time.


 


(d)           Litigation.  There are no Proceedings or investigations
pending or, to the knowledge of such Member or any of its Wholly Owned
Affiliates, threatened against or affecting such Member or any of its Wholly
Owned Affiliates or any of their properties, assets, or businesses in any court
or before or by any governmental department, board, agency, or instrumentality,
domestic or foreign, or any arbitrator which could, if adversely determined
(or, in the case of an investigation could lead to any Proceeding, which if
adversely determined could) reasonably be expected to materially impair such
Member’s ability to perform its obligations under this Agreement or to have a
material adverse effect on the consolidated financial condition of such Member;
and such Member or any of its Wholly Owned Affiliates has not received any
currently effective notice of any default, and such Member or any of its Wholly
Owned Affiliates is not in default, under any applicable order, writ,
injunction, decree, permit, determination, or award of any court, any governmental
department, board, agency, or instrumentality, domestic or foreign, or any
arbitrator which could reasonably be expected to materially impair such
Member’s ability to perform its obligations under this Agreement or to have a
material adverse effect on the consolidated financial condition of such Member.


 


(e)           Investment Company Act; Public
Utility Holding Company Act. 
Neither Member nor any of its Affiliates is, nor will the Company as a
result of any Member holding an Interest therein be, an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of
1940.  Neither Member nor any of its
Affiliates is, nor will the Company as a result of any Member holding an
Interest therein be, a “holding company,” “an affiliate of a holding company,”
or a “subsidiary of a holding company” as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.


 


(f)            Investigation.  Each Member is acquiring its Membership
Interest based upon its own investigation, and the exercise by such Member of
its rights and the performance of its obligations under this Agreement will be
based upon its own investigation,


 


49

















 


analysis, and
expertise.  Each Member’s acquisition of
its Membership Interest is being made for its own account for investment, and
not with a view to the sale or distribution thereof.  Each Member is a sophisticated investor possessing an expertise
in analyzing the benefits and risks associated with acquiring investments that
are similar to the acquisition of its Membership Interest.


 


Section
9:  Accounting, Books and Records.


 


9.1           Accounting, Books and
Records.


 


(a)                 The
Company shall keep on site at its principal place of business each of the following:


 


(i)            Separate books of account for the
Company which shall show a true and accurate record of all costs and expenses
incurred, all charges made, all credits made and received, and all income
derived in connection with the conduct of the Company and the operation of the
Business in accordance with this Agreement.


 


(ii)           A current list of the full name and
last known business, residence, or mailing address of each Member and Manager,
both past and present;


 


(iii)          A copy of the Certificate and all
amendments thereto, together with executed copies of any powers of attorney
pursuant to which any amendment has been executed;


 


(iv)          Copies of the Company’s federal,
state, and local income tax returns and reports, if any, for the later of the
five (5) most recent years or all open years;


 


(v)           Copies of this Agreement;


 


(vi)          Copies of any writings permitted or
required under Section 18-502 of the Act regarding the obligation of a Member
to perform any enforceable promise to contribute cash or property or to perform
services as consideration for such Member’s Capital Contribution;


 


(vii)         Unless contained in this Agreement, a
statement prepared and certified as accurate by the Board of Managers of the
Company which describes:


 


(1)           The amount of cash and a description
and statement of the agreed value of the other property or services contributed
by each Member and which each Member has agreed to contribute in the future;


 


(2)           The times at which or events on the
happening of which any Additional Capital Contributions agreed to be made by
each Member are to be made;


 


50

















 


(3)           If agreed upon, the time at which or
the events on the happening of which a Member may terminate its Membership
Interest in the Company and the amount of, or the method of determining, the
distribution to which it may be entitled respecting its Membership Interest and
the terms and conditions of the termination and distribution;


 


(4)           Any right of a Member to receive
distributions, which include a return of all or any part of a Member’s
contributions;


 


(5)           Any written consents obtained from
Members pursuant to Section 18-302 of the Act regarding action taken by
Members.


 


(b)           The Company shall use the accrual
method of accounting in preparation of its financial reports and for tax
purposes and shall keep its books and records accordingly.  The Company shall use GAAP consistent with
those policies used in DuPont’s consolidated financial reporting to
shareholders.  Any Member or its
authorized representative has the right to have reasonable access to and
inspect and copy the contents of such books or records and shall also have
reasonable access during normal business hours to such additional financial
information, documents, books and records of the Company.  The rights granted to a Member pursuant to
this Section 9.1 are expressly subject to compliance by such Member with the
safety, security and confidentiality procedures and guidelines of the Company,
as such procedures and guidelines may be established from time to time.


 


9.2           Reports;
Audits.


 


(a)           In General.  The Chief Financial Officer of the Company
shall be responsible for causing the preparation of financial reports of the
Company and the coordination of financial matters of the Company with the
Company’s accountants.


 


(b)           Periodic and Other Reports.  The Company shall cause to be delivered to
each Member the financial statements listed in clauses (i), (ii) and (iii)
below, prepared, in each case (other than with respect to Members’ Capital
Accounts, which shall be prepared in accordance with this Agreement) in
accordance with GAAP consistently applied (and, if required by any Member or
its Wholly Owned Affiliates for purposes of reporting under the Exchange Act,
Regulation S-X), and such other reports as any Member may reasonably request
from time to time; provided that, if the Board of Managers so determines within
thirty (30) days thereof, such other reports shall be provided at such
requesting Member’s sole cost and expense. 
The quarterly and monthly financial statements referred to in clauses
(ii) and (iii) below may be subject to normal year-end audit adjustments.


 


(i)            As soon as practicable following the
end of each Fiscal Year (and in any event not later than forty-five (45) days
after the end of such Fiscal Year) and at such time as distributions are made
to the Members pursuant to Section 12 hereof following the occurrence of a
Dissolution Event, a balance sheet of the Company as of the end of such Fiscal
Year and the related statements of operations, Members’ Capital Accounts and
changes therein,


 


51

















 


and cash flows for
such Fiscal Year, together with appropriate notes to such financial statements
and supporting schedules, all of which shall be audited and certified by the
Company’s independent accountants in accordance with GAAP, and in each case, to
the extent the Company was in existence, setting forth in comparative form the
corresponding figures for the immediately preceding Fiscal Year end (in the
case of the balance sheet) and the two (2) immediately preceding Fiscal Years
(in the case of the income statements).


 


(ii)           As soon as practicable following the
end of each of the first three Fiscal Quarters of each Fiscal Year (and in any
event not later than twenty-five (25) days after the end of each such Fiscal
Quarter), a balance sheet of the Company as of the end of such Fiscal Quarter
and the related statements of operations and cash flows for such Fiscal Quarter
and for the Fiscal Year to date, all of which shall be reviewed by the
Company’s independent accountants in accordance with GAAP, and in each case, to
the extent the Company was in existence, setting forth in comparative form the
corresponding figures for the prior Fiscal Year’s Fiscal Quarter and the
interim period corresponding to the Fiscal Quarter and the interim period just
completed.


 


(iii)          As soon as practicable following the
end of each month during each Fiscal Year (and in any event not later than four
(4) Business Days after the end of each such month for the income statement and
not later than six (6) Business Days after the end of each month for the
balance sheet), a Wilmington Forms Statement Package (in the form attached
hereto as Exhibit C) of the Company’s results as of the end of such month and
for the Fiscal Year to date or such other reasonable financial information as
requested in good-faith by a Member, all of which shall be in accordance with
GAAP, and in each case, to the extent the Company was in existence, setting forth
in comparative form the corresponding figures for the prior Fiscal Year’s
corresponding month and the interim period corresponding to the month and the
interim period just completed.


 


The quarterly or
annual statements described in clause (i) and (ii) above shall be accompanied
by a written certification of the Chief Executive Officer and the Chief
Financial Officer of the Company that such statements have been prepared in
accordance with GAAP consistently applied.


 


(c)           Member Audit.  Except as otherwise provided herein, each
Member may, at anytime, and at its own expense, conduct or cause to be
conducted an independent audit of the financial condition of the Company and/or
Solae, LLC; provided, however that such Member provides reasonable prior notice
of such audit to the Company and/or Solae, LLC (as the case may be), provides
reasonable prior notice of such audit to the other Members and uses its
commercially reasonable efforts to prevent such audits from unreasonably
interfering with the normal activities or conduct of the Company and/or Solae,
LLC (including, but not limited to, those with respect to the Business); and
provided further that such Member permits the other Members to participate in
such audit (at their expense) and shares the results of such audit with such
participating Members.


 


52

















 


9.3           Tax Matters.


 


(a)           Tax Elections.  The Board of Managers shall, without any
further consent of the Members being required (except as specifically required
herein), make any and all elections for federal, state, local, and foreign tax
purposes including, without limitation, any election, if permitted by
applicable law: (i) to adjust the basis of Property pursuant to Code Sections
754, 734(b) and 743(b), or comparable provisions of state, local or foreign
law, in connection with Transfers of Membership Interests and Company
distributions; (ii) with the consent of the Members, to extend the statute of
limitations for assessment of tax deficiencies against the Members with respect
to adjustments to the Company’s federal, state, local or foreign tax returns;
and (iii) to represent the Company and the Members before taxing authorities or
courts of competent jurisdiction in tax matters affecting the Company or the Members
in their capacities as Members, and to file any tax returns and execute any
agreements, settlements or other documents relating to or affecting such tax
matters, including agreements or other documents that bind the Members with
respect to such tax matters or otherwise affect the rights of the Company and
the Members.   The
Members acknowledge that it is the intention of the Company to be treated as a partnership for federal and all relevant state tax purposes.


 


(b)           Tax Information.  Necessary tax information shall be delivered
to each Member within a reasonable time after the end of each Fiscal Year of
the Company.


 


 


Section 10:  Amendments.


 


10.1         Amendments.


 


Amendments to this
Agreement may be proposed by any Manager or any Member.  Following such proposal, the Board of
Managers shall submit to the Members a verbatim statement of any proposed
amendment, provided that counsel for the Company shall have approved of the
same in writing as to form, and the Board of Managers shall include in any such
submission a recommendation as to the proposed amendment.  The Board of Managers shall seek the written
consent of the Members on the proposed amendment.  Subject to the provisions of Section 5.4 hereof, a proposed
amendment shall be adopted and be effective as an amendment hereto if it
receives the affirmative written consent of Members having a Percentage
Interest, in the aggregate, in excess of eighty percent (80%).


 


Section 11:  Transfers.


 


11.1         Restrictions
on Transfers.


 


Except as
otherwise permitted by this Agreement, no Member shall Transfer all or any
portion of its Membership Interest.  For
the avoidance of any doubt, no Member may pledge or otherwise encumber all or
any part of its Membership Interest as security for the payment of a Debt
except with the unanimous consent of the Members.  During the Initial Period, no Member shall Transfer its
Membership Interest to any Person without the prior written consent of the
Members; provided, however, that, subject to the conditions and restrictions
set forth in Sections 11.3


 


53

















 


and 11.4 hereof,
such consent shall not be required in connection with a Member’s Transfer of
its Membership Interest to one or more of its Affiliates, provided that in the
case of Central Soya such Affiliate must also be an Affiliate of Bunge Limited.


 


11.2         Permitted
Transfers.


 


Subject to the
conditions and restrictions set forth in Sections 11.3 and 11.4 hereof, a
Member may, after the Initial Period, Transfer all or any portion of its
Membership Interest to (a) any other Member or Affiliate of another Member, (b)
any Affiliate of the transferor; provided, however, that if the transferor is
Central Soya, such Affiliate must also be an Affiliate of Bunge Limited, (c)
the transferor’s administrator or trustee to whom such Membership Interest is
transferred involuntarily by operation of law, or (d) any Purchaser in
accordance with Section 11.4 hereof, without the consent of the Members (any
such Transfer being referred to in this Agreement as a “Permitted
Transfer”).  Anything contained herein
to the contrary notwithstanding, at no time shall any Member Transfer its
Membership Interest to one or more of the Persons listed in Exhibit D (or the
Affiliates of such listed Persons) attached hereto and made a part hereof
(“Prohibited Transferees”) without the prior written consent of all of the
Members.


 


11.3         Conditions
to Permitted Transfers.


 


A Transfer of a
Membership Interest shall not be treated as a Permitted Transfer under Section
11.2 hereof unless and until the following conditions are satisfied:


 


(a)           Except in the case of a Transfer of a
Membership Interest involuntarily by operation of law, the transferor and
transferee shall execute and deliver to the Company such documents and instruments
of conveyance as may be necessary or appropriate in the opinion of counsel to
the Company to effect such Transfer.  In
the case of a Transfer of a Membership Interest involuntarily by operation of
law, such Transfer shall be confirmed by presentation to the Company of legal
evidence of such Transfer, in form and substance satisfactory to counsel to the
Company.  In all cases, the Company
shall be reimbursed by the transferor and/or transferee for all costs and expenses
that it reasonably incurs in connection with a Transfer of a Membership
Interest.


 


(b)           The transferor and transferee shall
furnish the Company with the transferee’s taxpayer identification number,
sufficient information to determine the transferee’s initial tax basis in the
Membership Interest transferred, and any other information reasonably necessary
to permit the Company to file all required federal and state tax returns and
other legally required information statements or returns.  Without limiting the generality of the
foregoing, the Company shall not be required to make any distribution otherwise
provided for in this Agreement with respect to any transferred Membership
Interest until it has received such information.


 


(c)           Except in the case of a Transfer of a
Membership Interest involuntarily by operation of law, either (i) a transferred
Membership Interest shall be registered under the Securities Act, and any
applicable state securities laws, or (ii) the transferor shall


 


54

















 


provide an opinion
of counsel, which opinion and counsel shall be reasonably satisfactory to the
Board of Managers, to the effect that such Transfer is exempt from all
applicable registration requirements and that such Transfer will not violate
any applicable laws regulating the Transfer of securities.


 


(d)           Except in the case of a Transfer of a
Membership Interest involuntarily by operation of law, the transferor shall
provide an opinion of counsel, which opinion and counsel shall be reasonably
satisfactory to the Board of Managers, to the effect that such Transfer will
not cause the Company to be deemed to be an “investment company” under the
Investment Company Act of 1940.


 


11.4         Right of
First Offer; Certain Transfers; Buy-Out Interest and Change of Control.


 


In addition to the
other limitations and restrictions set forth in this Section 11, except as
permitted by Section 11.2 hereof, no Member shall Transfer all or any portion
of its Membership Interest (the “Offered Membership Interest”) unless such
Member (the “Seller”) first offers to sell the Offered Membership Interest
pursuant to the terms of this Section 11.4.


 


(a)           Offer Notice.  Prior to making any Transfer of a Membership
Interest that is subject to the terms of this Section 11.4, the Seller shall
give to the Company and each other Member written notice of such proposed
Transfer (the “Offer Notice”), which notice shall include an offer (the “Firm
Offer”) to sell the Offered Membership Interest to the other Members (the
“Offerees”) for a purchase price equal to the purchase price (the “Offer
Price”) offered by or to a prospective purchaser (the “Purchaser”) with respect
to the Offered Membership Interest, upon the same terms as (or more favorable
terms than) those offered by or to the Purchaser; provided that the Firm Offer
shall be made without regard to the requirement of any earnest money or similar
deposit required of the Purchaser prior to closing, and without regard to any
security (other than the Offered Membership Interest) to be provided by the
Purchaser for any deferred portion of the Offer Price.


 


(b)           Offer Period.  The Firm Offer shall be irrevocable for a
period (the “Offer Period”) ending at 11:59 P.M., local time at the Company’s
principal place of business, on the ninetieth (90th) day following the
day of the Offer Notice.


 


(c)           Acceptance of First Offer.  At any time during the Offer Period, any
Offeree may accept the Firm Offer as to all or any portion of the Offered
Membership Interest, by giving written notice of such acceptance to the Seller
and each other Offeree, which notice shall indicate the maximum portion of the
Offered Membership Interest that such Offeree is willing to purchase.  In the event that Offerees (“Accepting
Offerees”), in the aggregate, accept the Firm Offer during the Offer Period
with respect to all of the Offered Membership Interest, the Firm Offer shall be
deemed to be accepted and each Accepting Offeree shall be deemed to have
accepted the Firm Offer as to that portion of the Offered Membership Interest
agreed to by the Accepting Offerees or, without such agreement, such portion of
the Offered Membership Interest that corresponds to the product of each
Accepting Offeree’s Percentage Interest multiplied by the Offered Membership
Interest; provided, however, that for purposes of this


 


55

















 


Section 11.4(c),
the term “Percentage Interest” shall be calculated without reference to or
inclusion of the Capital Account of the Seller.  If the Offerees, in the aggregate, do not accept the Firm Offer
as to all of the Offered Membership Interest during the Offer Period, the Firm
Offer shall be deemed to be rejected in its entirety.


 


(d)           Closing of Purchase Pursuant to
Firm Offer.  In the event that the
Firm Offer is accepted, the closing of the sale of the Offered Membership
Interest shall take place within thirty (30) days after the Firm Offer is
accepted.  The Seller and all Accepting
Offerees shall execute such documents and instruments as may be necessary or
appropriate to effect the sale of the Offered Membership Interest pursuant to
the terms of the Firm Offer and this Section 11.


 


(e)           Sale If Firm Offer Rejected.  If the Firm Offer is not accepted during the
Offer Period in the manner hereinabove provided, the Seller may sell the Offered
Membership Interest to the Purchaser at any time within sixty (60) days after
the last day of the Offer Period; provided that such sale shall be made on
terms no more favorable to the Purchaser than those contained in the Firm
Offer; and provided further that such sale complies with the other terms,
conditions, and restrictions of this Agreement.  In the event that the Offered Membership Interest is not sold in
accordance with the terms of the preceding sentence, the Offered Membership
Interest shall again become subject to all of the conditions and restrictions
of this Section 11.


 


(f)            Certain Transfers.  In the event a Member (a “Transferring
Member”) proposes to Transfer all or any portion of its Membership Interest to
a Purchaser (other than an Affiliate of such Member) and the other Members (the
“Non-Transferring Members”) do not exercise their right to purchase such
Membership Interest as provided for above in this Section 11.4, the
Non-Transferring Members shall notify the Transferring Member within the Offer
Period of their election to Transfer or not to Transfer all or any portion of
their Membership Interests to such Purchaser (“Election Notice”).  If the Non-Transferring Members so elect to
Transfer all or any portion of their Membership Interests, then the
Transferring Member and the Non-Transferring Members shall use their
commercially reasonable best efforts to sell the sum of the Percentage
Interests of the Transferring Member and the Non-Transferring Members desired
to be sold by the Transferring Member and the Non-Transferring Members to such
Purchaser.  If, despite using their
commercially reasonable best efforts, the Transferring Member and the
Non-Transferring Members are unable to sell such sum to such Purchaser, the
Transferring Member and the Non-Transferring Members shall, unless otherwise
agreed by the Members, use their commercially reasonable best efforts to sell
all of the Membership Interests of the Company as provided in Section 11.4(h)
below.  If Central Soya, as a
Non-Transferring Member, elects not to Transfer any portion of its Membership
Interest and the Transferring Member has actually sold the proposed portion of
its Membership Interest (plus or minus ten percent (10%) of the proposed
portion of its Membership Interest) as provided in this Section 11.4(f),
Central Soya shall not exercise its right to make a Purchase Request as
provided in Section 11.4(g) below for a period of three (3) years from that
date of the Election Notice.


 


(g)           Buy-Out Interest.  Except as otherwise provided in Section
11.4(f) above, if, following the Initial Period, Central Soya elects to sell
its entire Membership Interest


 


56

















 


and Central Soya is unable, despite using its commercially reasonable
best efforts, to sell all of its Membership Interest  (the “Buy-Out Interest”) to a Purchaser, Central Soya may, on
each December 31st following the Initial Period, request that any current
Member purchase the Buy-Out Interest (the “Purchase Request”); provided that
such Member’s then-current Percentage Interest (including the Percentage
Interest of Affiliates of such Member) is at least forty-five percent (45%)
(such Member being hereinafter referred to as the “Buy-Out Member”).  Following a Buy-Out Member’s receipt of the
Purchase Request, the Buy-Out Member and Central Soya shall negotiate in good
faith for a period not to exceed one hundred twenty (120) days from the date of
the Purchase Request to enter into a written purchase agreement for such
purchase, which purchase agreement shall allow the Buy-Out Member to defer the
closing of such purchase for up to one (1) year following the execution of such
agreement.


 


(h)                                 Forced
Sale.  If the Buy-Out Member and
Central Soya are unable to agree upon a purchase price for the Buy-Out Interest
within the time period set forth in Section 11.4(g) above or if the Buy-Out
Member elects not to purchase the Buy-Out Interest at any price or if the
Transferring Member and the Non-Transferring Members are unable to sell the sum
of Percentage Interests to a Purchaser as provided in Section 11.4(f) above,
and unless otherwise agreed to by the Buy-Out Member and the holder of the
Buy-Out Interest, the Members shall use their commercially reasonable best
efforts to sell all of the Membership Interests of the Company and shall work
together in good faith for a period not to exceed one hundred eighty (180) days
for the sale of such Membership Interests (the “Forced Sale Period”).  If, during the Forced Sale Period, any
Member receives a bona-fide offer from a Purchaser (other than a Prohibited
Transferee) for the purchase of all of the Membership Interests of the Company
(the “Forced Sale Offer”), the Members shall either (i) sell all of the
Membership Interests pursuant to the Forced Sale Offer or (ii) the Member(s)
unwilling to sell its Membership Interest pursuant to the Forced Sale Offer
shall offer to purchase the Membership Interest of the Member(s) willing to
sell its Membership Interest pursuant to the Forced Sale Offer at a price equal
to the price offered in the Forced Sale Offer times the then-current Percentage
Interest of such willing Member(s).  If,
during the Forced Sale Period, the Members are unable to sell all of the
Membership Interests to a Purchaser or no Member(s) receives a Forced Sale
Offer, then the Members shall cease efforts to sell such Membership Interests
until such time as the procedures set forth in Section 11.4(f) or Section
11.4(g) above are recommenced; provided, however, that Central Soya shall not
recommence the procedures set forth in Section 11.4(g) above prior to December
31st of the next succeeding year.


 


(i)                                     Change
of Control.  Upon the Change of
Control of a Member (the “Change of Control Member”), the other Members shall
have the right to purchase the Change of Control Member’s Membership Interest
for an amount equal to the Fair Market Value of such Interest, and thus
increase their Percentage Interests as a result of such purchase; provided that
such Members notify the Change of Control Member of their desire to so acquire
the Change of Control Member’s Interest within sixty (60) days of such Members
becoming actually aware of such Change of Control; and provided further that
the Members shall use their commercially reasonable best efforts to consummate
such acquisition within one hundred eighty (180) days of such Members becoming
actually aware of the such Change of Control.


 


57

















 


11.5                           Prohibited Transfers.


 


Any purported Transfer of a Membership Interest that
is not a Permitted Transfer shall be null and void and of no force or effect
whatsoever; provided that, if the Company is required by law to recognize a
Transfer that is not a Permitted Transfer, the Membership Interest transferred
shall be strictly limited to the transferor’s rights to allocations and
distributions as provided by this Agreement with respect to the transferred
Membership Interest, which allocations and distributions may be applied
(without limiting any other legal or equitable rights of the Company) to
satisfy any debts, obligations, or liabilities for damages that the transferor
or transferee of such Interest may have to the Company.


 


In the case of a Transfer or attempted Transfer of a
Membership Interest that is not a Permitted Transfer, the parties engaging or
attempting to engage in such Transfer shall indemnify and hold harmless the
Company and the other Members from all cost, liability, and damage that any of
such indemnified Persons may incur (including, without limitation, incremental
tax liabilities, lawyers’ fees and expenses) as a result of such Transfer or
attempted Transfer and efforts to enforce the indemnity granted hereby.


 


11.6                           Rights of Unadmitted Assignees.


 


A Person who acquires a Membership Interest but who is
not admitted as a substituted Member pursuant to Section 11.7 hereof shall be
entitled only to allocations and distributions with respect to such Membership
Interest in accordance with this Agreement, and shall have no right to any
information or accounting of the affairs of the Company, shall not be entitled
to inspect the books or records of the Company, and shall not have any of the
rights of a Member under the Act or this Agreement.


 


11.7                           Admission of Substituted Members.


 


Subject to the other provisions of this Section 11, a
transferee of a Membership Interest may be admitted to the Company as a
substituted Member only upon satisfaction of the conditions set forth in this
Section 11.7:


 


(a)                                  The
Membership Interest with respect to which the transferee is being admitted was
acquired by means of a Permitted Transfer and such Transfer is not otherwise
prohibited by this Agreement;


 


(b)                                 The
transferee of the Membership Interest (other than, with respect to clauses (i)
and (ii) below, a transferee that was a Member prior to the Transfer) shall, by
written instrument in form and substance reasonably satisfactory to the Board
of Managers (and, in the case of clause (iii) and (iv) below, the transferor
Member), (i) make representations and warranties to each non-transferring
Member equivalent to those set forth in Section 8, (ii) accept and adopt the
terms and provisions of this Agreement, including this Section 11, (iii) accept
the provisions of the Related Agreements and any other transaction contemplated
by or referenced in Section 1.10(c), (iv) assume the obligations of the
transferor Member under this Agreement with respect to the transferred
Membership Interest and (v) accept, adopt and become a party to the Covenant
Not to Compete.  The transferor Member shall
be released from all such assumed


 


58

















 


obligations except (A) those obligations or liabilities of the
transferor Member arising out of a breach of this Agreement, (B) in the case of
a Transfer of a Membership Interest to any Person other than a Member or any of
its Wholly Owned Affiliates, those obligations or liabilities of the transferor
Member based on events occurring, arising or maturing prior to the date of such
Transfer, and (C) in the case of a Transfer of a Membership Interest to any of
its Wholly Owned Affiliates, any Capital Contribution or other financing
obligation of the transferor Member under this Agreement;


 


(c)                                  The
transferee pays or reimburses the Company for all reasonable legal, filing, and
publication costs that the Company incurs in connection with the admission of
the transferee as a Member with respect to the transferred Membership Interest;
and


 


(d)                                 Except
in the case of a Transfer of a Membership Interest involuntarily by operation
of law, if required by the Board of Managers, the transferee (other than a
transferee that was a Member immediately prior to such Transfer) shall deliver
to the Company evidence of the authority of such Person to become a Member and
to be bound by all of the terms and conditions of this Agreement, and the
transferee and transferor shall each execute and deliver such other instruments
as the Board of Managers reasonably deems necessary or appropriate to effect,
and as a condition to, such Transfer, including amendments to the Certificate
or any other instrument filed with the State of Delaware or any other state or
governmental authority.


 


11.8                           Representations Regarding Transfers;
Legend.


 


(a)                                  Each
Member hereby represents, covenants and agrees with the Company for the benefit
of the Company and all Members, that (i) it is not currently making a market in
Membership Interests and will not in the future make a market in Membership
Interests, (ii) it will not Transfer its Membership Interest on an established
securities market, a secondary market (or the substantial equivalent thereof)
within the meaning of Code Section 7704(b) (and any Regulations, proposed
Regulations, revenue rulings, or other official pronouncements of the Internal
Revenue Service or Treasury Department that may be promulgated or published
thereunder), and (iii) in the event such Regulations, revenue rulings, or other
pronouncements treat any or all arrangements which facilitate the selling of
Company interests and which are commonly referred to as “matching services” as
being a secondary market or substantial equivalent thereof, it will not
Transfer any Membership Interest through a matching service that is not
approved in advance by the Company.  Each
Member further agrees that it will not Transfer any Membership Interest to any
Person unless such Person agrees to be bound by this Section 11.8(a) and to
Transfer such Membership Interest only to Persons who agree to be similarly
bound.


 


(b)                                 Each
Member hereby represents and warrants to the Company and the Members that such
Member’s acquisition of a Membership Interest hereunder is made principally for
such Member’s own account and not for resale or distribution of such Membership
Interest.  Each Member further hereby
agrees that the following legend may be placed upon any counterpart of this
Agreement, the Certificate, or any other document or


 


59

















 


instrument evidencing ownership of a Membership Interest, in the event
the Board of Managers determines to cause Membership Interests to be
certificated:


 


The Company Membership
Interest represented by this document has not been registered under any
securities laws and the transferability of such Membership Interest is
restricted.  Such Membership Interest
may not be sold, assigned, or transferred, nor will any assignee, vendee,
transferee, or endorsee thereof be recognized as having acquired any such
Membership Interest by the issuer for any purposes, unless (1) a registration
statement under the Securities Act of 1933, as amended, with respect to such
Membership Interest shall then be in effect and such transfer has been
qualified under all applicable state securities laws, or (2) the availability
of an exemption from such registration and qualification shall be established
to the satisfaction of counsel to the Company.


 


The Membership
Interest represented by this document is subject to further restriction as to
its sale, transfer, hypothecation, or assignment as set forth in the Amended
and Restated Limited Liability Company Agreement of the Company and agreed to
by each Member.  Said restriction
generally provides, among other things, that no Membership Interest may be
transferred without first offering to transfer such Membership Interest to the
other Members.


 


11.9                           Distributions and Allocations in
Respect of Transferred Membership Interest.


 


If any Membership Interest is transferred during any
Allocation Year in compliance with the provisions of this Section 11, Profits,
Losses, each item thereof, and all other items attributable to the transferred
Membership Interest for such Allocation Year shall be divided and allocated
between the transferor and the transferee by taking into account their varying
Percentage Interests during the Fiscal Year in accordance with Code Section
706(d), using any conventions permitted by law and selected by the Board of
Managers.  All distributions on or
before the date of such Transfer shall be made to the transferor, and all
distributions thereafter shall be made to the transferee.  Solely for purposes of making such
allocations and distributions, the Company shall recognize such Transfer not
later than the end of the calendar month during which it is given notice of
such Transfer, provided that, if the Company is given notice of a Transfer at
least ten (10) Business Days prior to the Transfer, the Company shall recognize
such Transfer as of the date of such Transfer, and provided further that if the
Company does not receive a notice stating the date such Membership Interest was
transferred and such other information as the Board of Managers may reasonably
require within


 


60

















 


thirty (30) days after the end of the Allocation Year during which the
Transfer occurs, then all such items shall be allocated, and all distributions
shall be made, to the Person who, according to the books and records of the
Company, was the owner of the Membership Interest on the last day of such
Allocation Year.  Neither the Company
nor any Manager, officer, employee or agent of the Company, nor any Member,
shall incur any liability for making allocations and distributions in
accordance with the provisions of this Section 11.9, whether or not such Person
has knowledge of any Transfer of ownership of any Membership Interest.


 


11.10                     DuPont Transfers; Certain Rights.


 


Subject to the other provisions of this Section 11, in
the event DuPont Transfers (i) all of its Membership Interests to a substituted
Member or (ii) a portion of its Membership Interests to a substituted Member
and as a result of such Transfer such substituted Percentage Interest shall be
in excess of forty-five percent (45%), such substituted Member shall have the
right to exercise all of DuPont’s rights as provided in this Agreement.  In the event DuPont transfers a portion of
its Membership Interests to a substituted Member and, as a result of such
transfer, DuPont’s and its Affiliates’ Percentage Interest falls below
forty-five percent (45%) and such substituted Member’s Percentage Interest is
less than forty-five percent (45%), (i) the number of Managers on the Board of
Managers shall increase to five (5), or such higher odd number as the Members
may agree (the “Restructured Board”), and each Member shall be entitled to
appoint the number of Managers equal to such Member’s then-current Percentage
Interest times the total number of Managers to constitute the Restructured
Board, rounded to the nearest whole number, (ii) the Managers of the
Restructured Board shall select the Chairman of the Restructured Board by a
majority vote and the power of the Chairman to resolve a Deadlock shall be
terminated and (iii) the Restructured Board shall select the Chief Executive
Officer and Chief Financial Officer by a majority vote.


 


Section
12:  Dissolution
And Winding Up


 


12.1                           Dissolution Events.


 


(a)                                  Dissolution.
The Company shall dissolve and shall commence winding up and liquidating upon
the first to occur of any of the following (each a “Dissolution Event”):


 


(i)                                     The
unanimous consent of the Members to dissolve, wind up, and liquidate the
Company;


 


(ii)                                  A
judicial determination that an event has occurred that makes it unlawful,
impossible or impractical to carry on the Business; or


 


(iii)                               At any time there are no
Members.


 


The Members hereby agree that, notwithstanding any provision of the
Act, the Company shall not dissolve prior to the occurrence of a Dissolution
Event.


 


61

















 


(b)                                 Reconstitution.  If it is determined, by a court of competent
jurisdiction, that the Company has dissolved prior to the occurrence of a
Dissolution Event, then within an additional ninety (90) days after such
determination (the “Reconstitution Period”), the Members may elect to
reconstitute the Company and continue its business on the same terms and
conditions set forth in this Agreement by forming a new limited liability
company on terms identical to those set forth in this Agreement.  Unless such an election is made within the
Reconstitution Period, the Company shall liquidate and wind up its affairs in
accordance with Section 12.2 hereof.  If
such an election is made within the Reconstitution Period, then:


 


(i)                                     The
reconstituted limited liability company shall continue until the occurrence of
a Dissolution Event as provided in Section 12.1(a);


 


(ii)                                  Unless
otherwise agreed to by a majority of the Members, the Certificate and this
Agreement shall automatically constitute the Certificate and Agreement of such
new limited liability company.  All of
the assets and liabilities of the dissolved Company shall be deemed to have
been automatically assigned, assumed, conveyed, and transferred to the new
limited liability company.  No bond,
collateral, assumption or release of any Member’s or the Company’s liabilities
shall be required; provided that the right of the Members to select successor
Managers and to reconstitute and continue the Business shall not exist and may
not be exercised unless the Company has received an opinion of counsel that the
exercise of the right would not result in the loss of limited liability of any
Member and neither the Company nor the reconstituted limited liability company
would cease to be treated as a partnership for federal income tax purposes upon
the exercise of such right to continue.


 


12.2                           Winding Up.


 


Upon the occurrence of (i) a Dissolution Event or (ii)
the determination by a court of competent jurisdiction that the Company has
dissolved prior to the occurrence of a Dissolution Event (unless the Company is
reconstituted pursuant to Section 12.1(b) hereof), the Company shall continue
solely for the purposes of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors and Members,
and no Member shall take any action that is inconsistent with, or not necessary
to or appropriate for, the winding up of the Company’s business and affairs,
provided that all covenants contained in this Agreement and obligations
provided for in this Agreement shall continue to be fully binding upon the
Members until such time as the Property has been distributed pursuant to this
Section 12.2 and the Certificate of Cancellation has been filed in accordance
with this Agreement and the Act.  The
Liquidator shall be responsible for overseeing the winding up and dissolution
of the Company, which winding up and dissolution shall be completed as promptly
as possible following the occurrence of the Dissolution Event or the last day
on which the Company may be reconstituted pursuant to Section 12.1(b) hereof.  The Liquidator shall take full account of
the Company’s liabilities and Property and shall cause the Property or the
proceeds from the sale thereof (as determined pursuant to Section 12.9 hereof),
to the extent sufficient therefor, to be applied and distributed, to the
maximum extent permitted by law, in the following order:


 


62

















 


(a)                                  First,
to creditors (including Members and Managers who are creditors, to the extent
otherwise permitted by law) in satisfaction of all of the Company’s Debts and
other liabilities (whether by payment or the making of reasonable provision for
payment thereof), other than liabilities for which reasonable provision for
payment has been made and liabilities for distribution to members under Section
18-601 or 18-604 of the Act;


 


(b)                                 Second,
except as provided in this Agreement, to Members and former Members of the
Company in satisfaction of liabilities for distribution under Sections 18-601
or 18-604 of the Act; and


 


(c)                                  The
balance, if any, to the Members in accordance with the positive balance in
their Capital Accounts, after giving effect to all contributions, distributions
and allocations for all periods.


 


Notwithstanding anything contained herein to the contrary, upon the
dissolution and winding up of the Company, (i) if the “Solae” trademark has not
been transferred to the Company in accordance with Section 2.2 hereof, the
License Agreement and any sublicenses thereunder shall terminate or (ii) if the
“Solae” trademark has been transferred to the Company in accordance with
Section 2.2 hereof, the Company shall transfer and distribute all right, title
and interest in and to the name “Solae” to DuPont and neither Central Soya nor
any other Member shall have the right to use the name “Solae” or any name
confusingly similar thereto; provided, however, that in either case, DuPont
shall not use the name “Solae” in any soy ingredients business (other than in
connection with the use of the name “Solae” by the 8th Continent
Joint Venture; provided that such name is not used by the 8th
Continent Joint Venture in the Business) for a period of one (1) year following
such dissolution and winding up.  No
Member or Manager shall receive additional compensation for any services
performed pursuant to this Section 12, unless such Member or Manager is
appointed by the Board of Managers to serve as Liquidator pursuant to Section
12.9.


 


12.3                           Compliance with Certain Requirements
of Regulations; Deficit Capital Accounts.


 


In the event the Company is “liquidated” within the
meaning of Regulations Section 1.704-1(b) (2) (ii) (g), distributions shall be
made pursuant to this Section 12 to the Members who have positive Capital
Accounts in compliance with Regulations Section 1.704-1 (b) (2) (ii) (b)
(2).  If any Member has a deficit
balance in his Capital Account (after giving effect to all contributions,
distributions and allocations for all Allocation Years, including the
Allocation Year during which such liquidation occurs), such Member shall have
no obligation to make any contribution to the capital of the Company with
respect to such deficit, and such deficit shall not be considered a debt owed
to the Company or to any other Person for any purpose whatsoever.  In the discretion of the Liquidator, a pro
rata portion of the distributions that would otherwise be made to the Members
pursuant to this Section 12 may be:


 


(a)                                  Distributed
to a trust established for the benefit of the Members for the purposes of
liquidating Company assets, collecting amounts owed to the Company, and paying
any contingent or unforeseen liabilities or obligations of the Company.  The assets of any


 


63

















 


such trust shall be distributed to the Members from time to time, in
the reasonable discretion of the Liquidator, in the same proportions as the
amount distributed to such trust by the Company would otherwise have been
distributed to the Members pursuant to Section 12.2 hereof, or


 


(b)                                 Withheld
to provide a reasonable reserve for Company liabilities (contingent or
otherwise) and to reflect the unrealized portion of any installment obligations
owed to the Company; provided that such withheld amounts shall be distributed
to the Members as soon as practicable.


 


12.4                           Deemed Distribution and
Recontribution.


 


Notwithstanding any other provision of this Section
12, in the event the Company is liquidated within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g) but no Dissolution Event has occurred, the
Property shall not be liquidated, the Company’s Debts and other liabilities shall
not be paid or discharged, and the Company’s affairs shall not be wound
up.  Instead, solely for federal income
tax purposes, the Company shall be deemed to have distributed the Property
in-kind to the Members, who shall be deemed to have taken subject to all Debts
of the Company and other liabilities all in accordance with their respective
Capital Accounts.  Immediately
thereafter, the Members shall be deemed to have recontributed the Property
in-kind to the Company, which shall be deemed to have taken subject to all such
liabilities.


 


12.5                           Rights of Members.


 


Except as otherwise provided in this Agreement, each
Member shall look solely to the Property of the Company for the return of its
Capital Contribution and has no right or power to demand or receive Property
other than cash from the Company.  If
the assets of the Company remaining after payment or discharge of the debts or
liabilities of the Company are insufficient to return such Capital
Contribution, the Members shall have no recourse against the Company or any
other Member or Manager.


 


12.6                           Notice of Dissolution/Termination.


 


(a)                                  In
the event a Dissolution Event occurs or an event occurs that would, but for the
provisions of Section 12.1, result in a dissolution of the Company, the Board
of Managers shall, within thirty (30) days thereafter, provide written notice
thereof to each of the Members and to all other parties with whom the Company
regularly conducts business (as determined in the discretion of the Board of
Managers) and shall publish notice thereof in  a newspaper of general
circulation in each place in which the Company regularly conducts business (as
determined in the discretion of the Board of Managers).


 


(b)                                 Upon
completion of the distribution of the Company’s Property as provided in this
Section 12, the Company shall be terminated, and the Liquidator shall cause the
filing of the Certificate of Cancellation pursuant to Section 18-203 of the Act
and shall take all such other actions as may be necessary to terminate the
Company.


 


12.7                           Allocations during Period of
Liquidation.


 


64

















 


During the period commencing on the first day of the
Fiscal Year during which a Dissolution Event occurs and ending on the date on
which all of the assets of the Company have been distributed to the Members
pursuant to Section 12.2 hereof (the “Liquidation Period”), the Members shall
continue to share Profits, Losses, gain, loss and other items of Company
income, gain, loss or deduction in the manner provided in Section 3 hereof.


 


12.8                           Character of Liquidating
Distributions.


 


All payments made in liquidation of the interest of a
Member in the Company shall be made in exchange for the interest of such Member
in Property pursuant to Section 736(b)(1) of the Code, including the interest
of such Member in Company goodwill.


 


12.9                           The Liquidator.


 


(a)                                  Definition.
The “Liquidator” shall mean a Person or Persons appointed by the Board of
Managers to oversee the liquidation of the Company.  If the Board of Managers does not appoint a Liquidator within ten
(10) Business Days after the occurrence of a Dissolution Event, the Board of
Managers shall be the Liquidator.


 


(b)                                 Fees.
The Company is authorized to pay a reasonable fee to the Liquidator (if the
Liquidator is not a Member, an Affiliate of a Member or the Board of Managers)
for its services performed pursuant to this Section 12 and to reimburse the
Liquidator for its reasonable costs and expenses incurred in performing those
services.


 


(c)                                  Indemnification.  The Company shall indemnify, save harmless,
and pay all judgments and claims against the Liquidator or any officers,
directors, agents or employees of the Liquidator relating to any liability or
damage incurred by reason of any act performed or omitted to be performed by the
Liquidator, or any officers, directors, agents or employees of the Liquidator
in connection with the liquidation of the Company, including reasonable
attorneys’ fees incurred by the Liquidator, officer, director, agent or
employee in connection with the defense of any action based on any such act or
omission, which attorneys’ fees may be paid as incurred, except to the extent
such liability or damage is caused by the fraud, intentional misconduct of, or
a knowing violation of the laws by the Liquidator which was material to the
cause of action.


 


12.10                     Form of Liquidating Distributions.


 


For purposes of making distributions required by
Section 12.2 hereof, the Liquidator may determine whether to distribute all or
any portion of the Property in-kind or to sell all or any portion of the
Property and distribute the proceeds therefrom; provided, however, that all
right, title and interest in and to the name “Solae” shall be distributed to
DuPont in accordance with Section 12.2 hereof.


 


65

















 


Section
13: Miscellaneous


 


13.1                           Costs.


 


Except as otherwise agreed to by the Members, each
Member shall be solely responsible for its own transaction costs (including,
but not limited to, attorney’s fees) incurred by such Member in connection with
the Conversion, this Agreement and the Related Agreements.


 


13.2                           Notices.


 


Any notice, payment, demand, or communication required
or permitted to be given by any provision of this Agreement shall be in writing
and shall be deemed to have been delivered, given, and received for all
purposes (i) if delivered personally to the Person or to an officer of the
Person to whom the same is directed, or (ii) when the same is actually
received, if sent by a nationally recognized overnight delivery service or by
registered or certified mail, postage and charges prepaid, or by facsimile, if
such facsimile is followed by a hard copy of the facsimile communication sent
promptly thereafter by a nationally recognized overnight delivery service or by
registered or certified mail, postage and charges prepaid, addressed as
follows, or to such other address as such Person may from time to time specify
by notice to the Members and Managers:


 


(a)                                  If
to the Company:


 


Solae Holdings LLC


1034 Danforth Drive


St. Louis, Missouri 63102


United States of America


Facsimile: (314) 982-2461


 


(b)                                 If
to the Managers, to the addresses set forth in Exhibit B attached hereto and
made a part hereof;


 


(c)                                  If
to a Member, to the address set forth in Section 2.1 hereof.


 


13.3                           Binding Effect.


 


Except as otherwise provided in this Agreement, every
covenant, term, and provision of this Agreement shall be binding upon and inure
to the benefit of the Members and their respective successors, transferees, and
assigns.


 


13.4                           Construction.


 


Every covenant, term, and provision of this Agreement
shall be construed simply according to its fair meaning and not strictly for or
against any Member.  For the avoidance
of doubt, this Agreement and any ambiguity found in this Agreement shall not be
construed against a party merely because such party drafted this Agreement.


 


66

















 


13.5                           Time.


 


In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated
period of time begins to run shall not be included, but the time shall begin to
run on the next succeeding day.  The
last day of the period so computed shall be included, unless it is a Saturday,
Sunday or legal holiday, in which event the period shall run until the end of
the next day which is not a Saturday, Sunday or legal holiday.


 


13.6                           Headings.


 


Section and other headings contained in this Agreement
are for reference purposes only and are not intended to describe, interpret,
define, broaden or limit the scope, extent, or intent of this Agreement or any
provision hereof.


 


13.7                           Severability.


 


Except as otherwise provided in the succeeding
sentence, every provision of this Agreement is intended to be severable, and,
if any term or provision of this Agreement is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity or
legality of the remainder of this Agreement. 
The preceding sentence of this Section 13.7 shall be of no force or
effect if the consequence of enforcing the remainder of this Agreement without
such illegal or invalid term or provision would be to cause any Member to lose
the material benefit of its economic bargain.


 


13.8                           Incorporation by Reference.


 


Every exhibit, schedule, and other appendix attached
to this Agreement and referred to herein is not incorporated in this Agreement
by reference unless this Agreement expressly otherwise provides.


 


13.9                           Variation of Terms.


 


All terms and any variations thereof shall be deemed
to refer to masculine, feminine, or neuter, singular or plural, as the identity
of the Person or Persons may require.


 


13.10                     Governing Law.


 


The laws of the State of Delaware shall govern the
validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties arising hereunder, without regard to
the conflict of law principles of such laws.


 


13.11                     Waiver of Jury Trial.


 


Each of the Members irrevocably waives to the extent
permitted by law, all rights to trial by jury and all rights to immunity by
sovereignty or otherwise in any Proceeding or counterclaim arising out of or
relating to this Agreement.


 


67

















 


13.12                     Counterpart Execution.


 


This Agreement may be executed in any number of
counterparts with the same effect as if all of the Members had signed the same
document.  All counterparts shall be
construed together and shall constitute one agreement.


 


13.13                     Specific Performance.


 


Each Member agrees with the other Members that the
other Members would be irreparably damaged if any of the provisions of this
Agreement are not performed in accordance with their specific terms and that
monetary damages would not provide an adequate remedy in such event.  Accordingly, it is agreed that, in addition
to any other remedy to which the nonbreaching Members may be entitled under
this Agreement, at law or in equity, the nonbreaching Members shall be entitled
to seek injunctive relief to prevent breaches of the provisions of this
Agreement and specifically to enforce the terms and provisions hereof in any
action instituted in any court of the United States or any state thereof having
subject matter jurisdiction thereof.


 


13.14                     Consent to Jurisdiction and Service of
Process


 


(a)                                  Each
Member and Manager, and any Persons who become a Member or Manager pursuant to
the terms of this Agreement after the date hereof hereby and thereby consents
to: (i) the non-exclusive jurisdiction of the courts of the State of Delaware
and any U.S. District Court sitting in Wilmington, Delaware, and (ii) service
of process by certified mail to the address required for notices under Section
13.2 hereof.  This Section 13.14 shall
not be construed to prevent any party from bringing an action in any other
jurisdiction or from serving process by any other legal means.


 


[Signatures follow on
separate pages]


 


68

















 


IN WITNESS WHEREOF, the parties have executed and
entered into this Amended and Restated Limited Liability Company Agreement as
of the day first set forth above.


 


 


	
   

  	
  E.I. du Pont de Nemours and Company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ E.I. DU PONT DE NEMOURS AND COMPANY

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Central Soya Company, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ CENTRAL SOYA COMPANY, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Solae Holdings LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ SOLAE HOLDINGS LLC

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


 


537967v54


 


 


Signature Page to Amended
and Restated Limited

Liability Company Agreement


 


69

















 


SCHEDULE 1


 


Certain Grades of Lecithins


 


All non-food grade soybean lecithin produced at
Bunge Limited’s crushing plant in La Coruna, Spain.


 


All non-food grade soybean and sunflower seed
lecithin produced at Bunge Limited’s crushing plant in Mannheim, Germany.


 


All non-food grade rapeseed lecithin produced at
Bunge Limited’s crushing plants in Kruszwica, Poland, Mannheim, Germany and
Bruck/Leitha, Austria.


 


All food-grade sunflower seed lecithin produced
at Bunge Limited’s crushing plants in Martfu, Hungary (sales are limited only
to the extent required to meet Bunge Limited’s obligations under the existing
supply contract with Unilever; upon expiration of the Unilever contract, all
food-grade sunflower seed lecithin producted at Bunge Limited’s crushing plants
in Martfu, Hungary will be sold to the Company or its Affiliates).


 


All non-food grade sunflower seed lecithin
produced at Bunge Limited’s crushing plant in Bruck/Leitha, Austria.


 


Also, if Bunge Limited increases its crushing
capacity at any of its plants and none of the Company or its Affiliates does
not exercise its right of first refusal to purchase all or any portion of the
increased volume of lecithins (all types) resulting from the capacity increase,
then Bunge Limited can sell such volumes.


 


Notwithstanding the foregoing, all sales of
lecithin by Bunge Limited will be restricted exclusively to the animal feed
compounding (blending) market or to industrial markets (provided that the
Company or its Affiliates shall be given the right of first refusal to market
the lecithin sold to industrial markets), except for the sales to Unilever.


 


70

















 


SCHEDULE 2


 


Certain Services


 


	
  Country

  	
   

  	
  Type of Service

  
	
  Argentina

  	
   

  	
  Payroll, Benefits & Office lease via Pioneer
  Argentina

  
	
  Brazil (Esteio)

  	
   

  	
  Services to be provided by Gaspar

  
	
  Brazil (Sao Paulo)

  	
   

  	
  Services to be provided by Gaspa

  
	
  South Africa

  	
   

  	
  Payroll, Benefits & Office lease via DuPont
  South Africa

  
	
  Venezuela

  	
   

  	
  Payroll, Benefits & Office lease via DuPont
  Venezuela

  
	
  Belgium

  	
   

  	
  Office lease and services with Dupont/Pioneer

  
	
  Bulgaria

  	
   

  	
  Services of local DuPont employees

  
	
  Czech Republic

  	
   

  	
  Services of local DuPont employees

  
	
  Egypt

  	
   

  	
  Services of local DuPont employees

  
	
  France

  	
   

  	
  Payroll consultant (tours)

  
	
  Netherlands

  	
   

  	
  Service Agreement with PWC for DPT N.V. Holding Co

  
	
  Netherlands

  	
   

  	
  Marketing services

  
	
  Poland

  	
   

  	
  Marketing services

  
	
  Romania

  	
   

  	
  Marketing services

  
	
  Russia

  	
   

  	
  Marketing services

  
	
  Spain

  	
   

  	
  Marketing services and payroll/benefits

  
	
  U.K.

  	
   

  	
  Offices leases and services – Corby and Stevenage

  
	
  Canada

  	
   

  	
  Marketing services

  
	
  Australia

  	
   

  	
  Service Agreement for Payroll, Benefits, etc. With
  Scalzo. Office lease with another 3rd Party

  
	
  China

  	
   

  	
  Payroll & benefits from DCH for Beijing,
  Guangzhou, Luohe and Shanghai

  
	
  Hong Kong

  	
   

  	
  Payroll, benefits & office lease via DCH

  
	
  India

  	
   

  	
  Services of local DuPont employees

  
	
  Indonesia

  	
   

  	
  Services of local DuPont employees

  
	
  Japan

  	
   

  	
  Services of local DuPont employees

  
	
  Korea

  	
   

  	
  Services of local DuPont employees

  
	
  Malaysia

  	
   

  	
  Services of local DuPont employees

  
	
  Philippines

  	
   

  	
  Services of local DuPont employees

  
	
  Singapore

  	
   

  	
  Services of local DuPont employees

  
	
  Taiwan

  	
   

  	
  Services of local DuPont employees

  
	
  Thailand

  	
   

  	
  Services of local DuPont employees

  
	
  Bellevue, OH

  	
   

  	
  Service Agreement for Asset Maintenance

  
	
  Gibson City

  	
   

  	
  Service Agreement with Bunge North America for optional
  Energy Procurement, Hedging & Consulting Services and Tech Service

  



 


71

















 


EXHIBIT A


 


Members


 


1.                                       E.I.
du Pont de Nemours and Company


 


2.                                       Central
Soya Company, Inc.


 


72

















 


EXHIBIT B


 


Managers


 


	
  1.                                J.
  Erik Fyrwald

  	
   

  	
   

  	
  DuPont

  
	
  DuPont
  Agriculture & Nutrition

  	
   

  	
   

  	
   

  
	
  4417
  Lancaster Pike

  	
   

  	
   

  	
   

  
	
  Chestnut
  Run Plaza 705

  	
   

  	
   

  	
   

  
	
  P.O.
  Box 80705

  	
   

  	
   

  	
   

  
	
  Wilmington,
  DE 19880-0705

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.                                Joseph
  M. Fanelli

  	
   

  	
   

  	
  DuPont

  
	
  DuPont
  Agriculture & Nutrition

  	
   

  	
   

  	
   

  
	
  4417
  Lancaster Pike

  	
   

  	
   

  	
   

  
	
  Chestnut
  Run Plaza 705

  	
   

  	
   

  	
   

  
	
  P.O.
  Box 80705

  	
   

  	
   

  	
   

  
	
  Wilmington,
  DE 19880-0705

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.                                Andrew
  J. Burke

  	
   

  	
   

  	
  Central Soya

  
	
  Bunge
  Management Services, Inc.

  	
   

  	
   

  	
   

  
	
  50
  Main Street 6th Floor

  	
   

  	
   

  	
   

  
	
  White
  Plains, NY 10606

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.                                Carl
  L. Hausmann

  	
   

  	
   

  	
  Central Soya

  
	
  Bunge
  Management Services, Inc.

  	
   

  	
   

  	
   

  
	
  50
  Main Street 6th Floor

  	
   

  	
   

  	
   

  
	
  White
  Plains, NY 10606

  	
   

  	
   

  	
   

  



 


73

















 


EXHIBIT C


 


Wilmington Forms Statement Package


 


74

















 


EXHIBIT D


 


Prohibited Transferees


 


1.                                        Archer
Daniels Midland Company


 


2.                                        Cargill,
Incorporated


 


3.                                        Monsanto
Company


 


75