Exhibit. 10.2


 


Solae Contribution Agreement


 


CONTRIBUTION AGREEMENT


 


SOLAE HOLDINGS LLC


 


THIS CONTRIBUTION AGREEMENT (this “Agreement”) is made
as of the Effective Time by and between Central Soya Company, Inc., an Indiana
corporation (“Contributing
Member”), and Solae Holdings LLC, a Delaware limited liability
company (the “Company”).  This Agreement, the Amended and Restated
Limited Liability Company Agreement of the Company of an even date herewith by
and among E.I. du Pont de Nemours and Company (“DuPont”), Contributing Member and the
Company (the “LLC
Agreement”) and the Indemnity Agreement of an even date herewith
by and between DuPont and the Company are entered into and shall be effective
simultaneously with each other as of the date hereof.  Capitalized terms not defined where they appear in the text of
this Agreement are defined in Article I hereof.  Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the LLC Agreement.


 


RECITALS


 


WHEREAS, immediately prior to the DuPont PTI
Conversion, DuPont was the owner of 100% of the capital stock of DuPont PTI;


 


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 DuPont PTI Certificate of Conversion on March
28, 2003;


 


WHEREAS, PTI was converted into Solae, LLC 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 Company Certificate on March 28, 2003;


 


WHEREAS, immediately prior to Contributing
Member’s admission as a  Member of the
Company, DuPont owned 100% of the Membership Interests of the Company;


 


WHEREAS, after the DuPont PTI Conversion but
prior to Contributing Member’s admission as a Member of the Company, the
Company caused Solae, LLC to distribute to the Company all of Solae LLC’s
membership interests held by Solae, LLC in 8th Continent, L.L.C., a
Delaware limited liability company (“8th Continent”), and thereafter
the Company distributed to DuPont all of the membership interests held by the
Company in 8th Continent;


 


WHEREAS, upon entering into the LLC Agreement
and making its Capital Contribution pursuant to this Agreement, Contributing
Member shall be admitted as a Member of the Company at the Effective Time;


 


WHEREAS, under this Agreement, Contributing
Member is contributing the Contributed Property to the Company in exchange for
its initial Membership Interest in the Company;


 

















 


WHEREAS, Contributing Member wishes to
contribute to the Company the Contributed Property in exchange for 28.06% of
the total Membership Interests of the Company;


 


WHEREAS, immediately following Contributing
Member’s contribution of the Contributed Property as provided in this
Agreement, DuPont’s and Contributing Member’s Percentage Interests of the
Company shall be equal to 71.94% and 28.06%, respectively;


 


WHEREAS, under the Indemnity Agreement,
DuPont is making certain representations and warranties and agreeing to certain
obligations to the Company;


 


WHEREAS, as an inducement to DuPont entering
into the LLC Agreement and the Indemnity Agreement, Contributing Member desires
to make certain representations and warranties and agree to certain obligations
to the Company as set forth herein; and


 


WHEREAS, the contribution of the Contributed
Property by Contributing Member is subject to the terms and conditions of this
Agreement, the LLC Agreement and the Conveyance Documents.


 


NOW, THEREFORE, in consideration of the
foregoing and the representations, warranties, covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, Contributing Member and the Company agree
as follows:


 


ARTICLE I


 


DEFINITIONS AND OTHER TERMS


 


Section. 1.01                           Definitions.


 


As used in
this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):


 


“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).


 


“Actions” is defined
in Section 3.01(e).


 


“Adjustment
Amount” is defined in Section 2.03(a).


 


“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, none of
Bunge, Contributing Member or their transferees shall be deemed to be an
Affiliate of DuPont. 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


 


2

















 


otherwise.


 


“Agreement” is defined
in the preamble.


 


“Applicable Law”
means all applicable laws, statutes, treaties, rules, codes, ordinances,
regulations, standards, permits, certificates, orders, interpretations and
licenses of any Governmental Authority and judgments, decrees, injunctions,
writs, orders or like action of any court, arbitrator or other judicial or
quasi-judicial tribunal of competent jurisdiction (including, but not limited
to, those pertaining to health, safety of the environment or otherwise).


 


“Assumed
Liabilities” means (a) all debts, liabilities and
obligations arising out of the operations of the Company or any of the
Entities, but only to the extent that any such debt, liability or obligation is
for, relates to and arises during time periods after the Effective Time and (b)
all debts, liabilities and obligations of Contributing Member (relating to the
Contributed Property) or the Entities existing immediately prior to the
Effective Time and listed as Assumed Liabilities on Schedule 1.01(a).


 


“Audit
Statement” is defined in Section 2.03(a).


 


“Bellevue
Distribution Center Leases” is defined in Section
2.01(c).


 


“Breach”
means (a) any breach of any representation or warranty made by Contributing
Member contained in this Agreement, the LLC Agreement or any Conveyance
Document or in any other document delivered by Contributing Member pursuant to
this Agreement, the LLC Agreement or the Conveyance Documents or (b) the breach
or non-fulfillment of any covenant or agreement to be performed by Contributing
Member contained in this Agreement, the LLC Agreement or the Conveyance
Documents; provided, however, that a Breach shall not be deemed to have
occurred at anytime after the three (3) year anniversary of the Effective Time;
and provided further that with respect to Tax matters a Breach shall not be
deemed to have occurred at anytime after the expiration of the applicable statutory
period.


 


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


 


“CS
Denmark” means Central Soya European Proteins, A/S,
a Danish corporation and a Wholly Owned Affiliate of Central Soya.


 


“CS
Dominican” means Distribuidores Del Sol, SA, a
Dominican Republic corporation and a Wholly Owned Affiliate of Central Soya.


 


“CS
France” means Central Soya European Proteins
France S.A., a French Corporation and a Wholly Owned Affiliate of Central Soya.


 


“CS
Germany” means CSY Agri-Processing (Deutschland)
GmbH, a German corporation and a Wholly Owned Affiliate of Central Soya.


 


“CS
Italy” means Central Soya European Lecithins Italia
Srl, an Italian 


 


3

















 


corporation and a Wholly Owned Affiliate of
Lecithins Germany.


 


“CS
Protomed” means Protomed, Inc., a Delaware
corporation in which Contributing Member owns 50,000 Series B Convertible
Preferred Shares.


 


“Cash
Contribution” is defined in Section 3.03.


 


“Claim
Notice” is defined in Section 4.03.


 


“Claims” means
all rights, claims, credits, causes of action or rights of setoff.


 


“Company” is defined
in the preamble.


 


“Company
Certificate” means the certificate of formation of
the Company filed on March 28, 2003 with the Secretary of State of the State of
Delaware pursuant to the Act.


 


“Company Indemnitee”
means the Company, any of its Affiliates (other than Contributing Member and
its Affiliates, but including the Entities after the Effective Time), and any
Member of the Company (other than Contributing Member and its transferees) and
any of their directors, officers, employees, agents, successors and assigns.


 


“Contributed Assets” is defined in
Section 2.01.


 


“Contributed
Property” is defined in Section 2.02.


 


“Contributed
Stock” is defined in Section 2.02.


 


“Contributing
Member” is defined in the preamble.


 


“Contributing Member Indemnitee” means Contributing Member, any of
its Affiliates (other than the Company Indemnitees), and any of their
directors, officers, employees, agents, successors and assigns.


 


“Contribution
Date” means the date hereof.


 


“Conveyance
Documents” means all of the documents set forth in
Schedule 1.01(b).


 


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


 


“DuPont” is defined in the preamble.


 


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


 


4

















 


“DuPont
PTI Certificate of Conversion” means the
certificate of conversion of DuPont PTI filed on March 28, 2003 with the
Secretary of State of the State of Delaware in accordance with 6 Del. C.
§ 18-214 and 8 Del. C. § 266.


 


“DuPont
PTI Conversion” means the conversion of DuPont PTI
into the Company on March 28, 2003 pursuant to Section 266 of the Delaware
General Corporation Law and Section 18-214 of the Act.


 


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


 


“8th
Continent” is defined in the recitals.


 


“Entities”
means CS Denmark, CS France, SOGIP, CS Germany, CS Dominican, Stern, Lecithins
Germany, Lecithins France, CS Italy and CS Protomed.


 


“Entity
Assets” means the assets currently owned by the
Entities, including but not limited to, those set forth in Schedule 1.01(c).


 


“Excluded
Liabilities” means (a) all debts, liabilities and
obligations listed as Excluded Liabilities on Schedule 1.01(a) and (b)
all debts, liabilities and obligations of Contributing Member, the Company
and/or the Entities other than the Assumed Liabilities.


 


“Foreign
Tax Assessment” is defined in Section 4.04(b).


 


“Foreign
Tax Refund” is defined in Section 4.04(d).


 


“Former
Member Adjustment Amount” is defined in Section
2.03(b).


 


“Former
Member Breach” is defined in Section 3.04.


 


“Former Member Liability” means any Former Member Excluded
Liability, Former Member Breach, Former Member Adjustment Amount, Former Member
US Tax Assessment, Former Member Foreign Tax Assessment or Former Member
Transfer Tax Assessment.


 


“Former Member Excluded Liability” is defined in Section 2.04.


 


“Former Member Foreign Tax Assessment” is defined in Section 4.04(b).


 


“Former Member Transfer Tax Assessment” is defined in Section 4.05.


 


“Former Member US Tax Assessment” is defined in Section 4.04(a).


 


“Gibson City Distribution Center Lease” is defined in Section 2.01(b).


 


“Governmental
Authority” means any federal, state,
county, municipal, foreign, international, regional or other governmental
authority, agency, board, bureau, body or 


 


5

















 


instrumentality.


 


“Indebtedness”
is defined in Section 3.03.


 


“Indemnified
Party” is defined in Section 4.03.


 


“Intellectual Property” means patents,
trade marks, service marks, logos, trade names, internet domain names, rights
in designs, copyrights (including rights in computer software), database
rights, semi-conductor topography rights, utility models, rights in know-how
and other intellectual property rights, in each case whether registered or
unregistered and including applications for registration, and all rights or
forms of protection having equivalent or similar effect anywhere in the world owned
by Contributing Member (or its Affiliates) that are necessary to own, operate
or use the Contributed Assets or Entity Assets as currently owned, operated and
used; provided, however, that Intellectual Property shall not include the name,
logo, trade name and internet domain name of Contributing Member and any
intellectual property containing the name “Central Soya”; provided further that
the Company and the Entities shall have the right to use the name “Central
Soya” on a royalty-free basis for a period of three (3) months following the
Effective Time, or such longer period as Contributing Member and the Company
shall agree upon in writing for purposes of selling existing inventory and
transferring and transitioning the Contributed Property.


 


“Lecithins
France”  means
Central Soya European Lecithin France SARL, a French corporation and a Wholly
Owned Affiliate of Lecithins Germany.


 


“Lecithins
Germany” means Central Soya European Lecithins
GmbH & CO KG, a German limited partnership and a ninety-six percent (96%)
owned Affiliate of CS Germany and a four percent (4%) owned affiliate of Stern.


 


“Lien”
means any mortgage, lien, pledge, claim, charge,
security interest, title defect or encumbrance of any kind with respect to any
asset, including any conditional sale or other title retention agreement, any
lease in the nature thereof, or the filing of or agreement to give any
financing statement, other than any Permitted Lien.


 


“LLC Agreement” is
defined in the preamble.


 


“Material Adverse Effect”
means any event, change, circumstance or effect that, individually or in the
aggregate, has a material adverse effect on the Contributed Assets, the Entity
Assets, the Contributed Stock or any of the Entities, or on Contributing
Member’s ability to consummate the transactions contemplated by this Agreement,
except (a) any events, changes, circumstances or effects related to general
economic, regulatory or political conditions or from terrorist acts, declared
or undeclared war or other hostilities or (b) events, changes, circumstances or
effects that affect the general industry in which Contributing Member or the
Entities operate or the Contributed Property or the Entity Assets are used.


 


“Ordinary
Course” is defined in Section 2.03(a).


 


“Permits” means
all licenses, permits, registrations, authorizations or approvals from any
Governmental Authority or public or self-regulatory body.


 


6

















 


“Permitted
Lien” means any of the following: (a) Liens for
Taxes accrued but not yet due or for Taxes the validity of which is being
contested in good faith by appropriate proceedings and for which adequate
provision has been made, (b) any Lien that, either individually or in the
aggregate, would not have a Material Adverse Effect on the asset which is
subject to the Lien and (c) statutory carriers’, warehousemen’s workmen’s or
mechanics’ Liens or other like Liens with respect to any asset incurred in the
Ordinary Course that are not yet delinquent or are being contested in good
faith.


 


“Person” means
an individual, partnership (general or limited), limited liability company,
corporation, statutory trust, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.


 


“Pre-Effective Time Tax Period”
means any Tax period ending before the Effective Time, or, in the case of any
Tax period that includes, but does not end on, the Effective Time, the portion
of such period prior to the Effective Time.


 


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


 


“SOGIP”
means SOGIP, SA, a French corporation and a seventy-five percent (75%) owned
Affiliate of Central Soya.


 


“Solae,
LLC” means Solae, LLC, the Delaware limited
liability company resulting from the conversion of PTI, and a Wholly Owned
Affiliate of the Company.


 


“Stern”
means Stern Lecithin Verwaltungs, a German corporation and a Wholly Owned
Affiliate of CS Germany.


 


“Taxes”
means all taxes of any kind, including without
limitation, those on, or measured by or referred to as net income, alternative
or other minimum tax, gross income, gross receipts, sales, use, ad valorem, transfer,
franchise, capital, paid-up capital, profits, license, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property,
environmental or windfall profits tax, customs, duties or similar fees,
assessments or charges of any kind whatsoever, together with any interest and
any penalties, additions to tax or additional amounts imposed by any taxing
authority, domestic or foreign, in respect of such Taxes.


 


“Transfer
Taxes” is defined in Section 4.05.


 


“Transfer
Tax Assessment” is defined in Section 4.05.


 


“US
Tax Assessment” is defined in Section 4.04(a).


 


“US
Tax Refund” is defined in Section 4.04(c).


 


“Warranties” is defined in
Section 2.01(h).


 


7

















 


Section 1.02
                             Certain
References.


 


Unless otherwise indicated, references in
this Agreement to articles, sections, paragraphs, clauses, recitals and
schedules are to the same contained in or attached to this Agreement.


 


ARTICLE II


 


CONTRIBUTION OF
THE CONTRIBUTED PROPERTY 


BY CONTRIBUTING
MEMBER AND TREATMENT OF LIABILITIES


 


Section 2.01                                Contribution
of the Contributed Assets.


 


Subject
to the terms and conditions of this Agreement and the LLC Agreement, at the
Effective Time, in accordance with the LLC Agreement, Contributing Member
hereby grants, conveys, assigns, transfers and delivers to the Company, as a
Capital Contribution, free and clear of all Liens (other than Permitted Liens),
all of Contributing Member’s right, title and interest in, to and under the
following assets (the “Contributed
Assets”):


 


(a)                                  all of the assets
described on Schedule 2.01(a) hereto;


 


(b)                                 that certain lease
agreement dated April 6, 1992, between Contributing Member (as lessee) and
Universal Financial Services, L.P. (as lessor) relating to the Gibson City
Distribution Center (the “Gibson
City Distribution Center Lease”)’


 


(c)                                  those certain lease
agreements dated December 1, 1999, and May 1, 2000, between Contributing Member
(as lessee) and Universal Financial Services, L.P. (as lessor) relating to the
Bellevue Distribution Center (the “Bellevue Distribution Center Leases”);


 


(d)                                 accounts receivable of
Contributing Member (and its Affiliates) relating to the Contributed Assets;


 


(e)                                  to the extent legally
transferable, all Claims of Contributing Member (and its Affiliates) against
third parties relating to the Contributed Assets or the Contributed Stock,
including without limitation, unliquidated rights under manufacturers’ and
vendors’ warranties but excluding all amounts representing reimbursements for
items paid by Contributing Member;


 


(f)                                    to the extent
legally transferable, any Permits relating to the use or operation of the
Contributed Assets;


 


(g)                                 originals or copies of
all books of account, records, files and papers, whether in hard copy or
computer format, used exclusively or held for use exclusively in connection
with or exclusively relating to the Contributed Assets or the Contributed
Stock, including without limitation, engineering information, manuals and data,
and in respect of information relating to Taxes, only such information that is
necessary for the preparation or defense of any tax returns to be filed by the
Company after the Contribution Date;


 


8

















 


(h)                                 to the extent legally
transferable, all rights of Contributing Member (and its Affiliates) under or
pursuant to warranties, representations and guarantees made by suppliers or
manufacturers in connection with the Contributed Assets, the servicing of the
Contributed Assets provided to Contributing Member (or its Affiliates) or products, materials,
equipment or components relating to the Contributed Assets (collectively, the “Warranties”),
but excluding any rights to receive amounts under the Warranties representing
reimbursements for items paid by Contributing Member;


 


(i)                                     to the extent
legally transferable, all  rights of
Contributing Member (and its Affiliate) under or pursuant to contracts or other
agreements (whether oral or written) relating to the Contributed Assets, but
excluding any rights to receive amounts under such contracts or other
agreements representing reimbursements for items paid by Contributing Member;
and


 


(j)                                     to the extent cash
has not been retained as provided in Section 3.03, cash in an amount equal to
the Indebtedness at the Effective Time.


 


Section 2.02                                Contribution of
the Contributed Stock


 


Subject
to the terms and conditions of this Agreement and the LLC Agreement, on the
Effective Time, in accordance with the LLC Agreement, Contributing Member hereby
grants, conveys, assigns, transfers and delivers to the Company, as a Capital
Contribution, free and clear of all Liens (other than Permitted Liens), all of
Contributing Member’s right, title and interest in, to and under the following:
(the “Contributed Stock”,
and together with the Contributed Assets, the “Contributed Property”):


 


(a)                                  all of the issued and
outstanding shares of capital stock of CS Denmark;


 


(b)                                 all of the issued and
outstanding shares of capital stock of CS France;


 


(c)                                  187,500 shares of
SOGIP, constituting seventy-five percent (75%) of all of the issued and
outstanding shares of capital stock of SOGIP;


 


(d)                                 all of the issued and
outstanding shares of capital stock of CS Germany;


 


(e)                                  all of the issued and
outstanding shares of capital stock of CS Dominican, (except for a total of six
(6) shares; certificates for which have been endorsed in blank); and


 


(f)                                    50,000 Series B
Convertible Preferred Shares of CS Protomed.


 


Section 2.03                                Treatment of
Assumed Liabilities.


 


(a)                                  The Company and the
Entities shall be responsible and liable for their respective Assumed
Liabilities.  Within the ninety (90) day
period following the Contribution Date, Contributing Member and DuPont (jointly
or individually) shall be permitted to conduct an audit of Contributing
Member’s and each of the Entities’ books, records, financial statements and
other accounting information directly relating to (i) the Assumed Liabilities
listed on Schedule 1.01(a)


 


9

















 


and (ii) Contributing Member’s or the
Entities’ inventory, receivables or other liabilities to determine if, on and
prior to the Effective Time, (A) such books, records, financial statements and
other accounting information were maintained, and such Assumed Liabilities,
inventory, receivables and other liabilities were incurred, paid, acquired,
maintained and/or collected, by Contributing Member or the Entities, as the
case may be, in the ordinary course of business, consistent with their
respective past practices (the “Ordinary Course”) and (B) the balances in Contributing
Members’ and each of the Entities’ Assumed Liabilities, inventory, receivables
and other liabilities accounts are consistent with balances maintained in the
Ordinary Course (subject only to adjustment for seasonality and material
changes in economic and business conditions). 
Within thirty (30) days following such audit, DuPont and/or Contributing
Member may deliver to the Members a statement (an “Audit Statement”) setting forth in
reasonable detail each case in which DuPont and/or Contributing Member believes
in good faith that Contributing Member or any of the Entities (1) failed to
maintain such books, records, financial statements or other accounting
information in the Ordinary Course, (2) failed to incur, pay, acquire, maintain
and/or collect such Assumed Liabilities, inventory, receivables or other
liabilities in the Ordinary Course or (3) failed to maintain balances in such
Assumed Liabilities, inventory, receivables or other liabilities accounts at
levels consistent with the Ordinary Course (adjusted for seasonality and
material changes in economic and business conditions) and each adverse monetary
effect such failure had on such Assumed Liabilities, receivables, inventories
or other liabilities (each, an “Adjustment Amount”). 
Within thirty (30) days following a Member’s receipt of an Audit
Statement, the Member shall notify the Company and the other Members of any
dispute it may have with respect to each Adjustment Amount reflected in such Audit
Statement and such disputes shall be submitted to the Board of Managers for
resolution.  If the Board of Managers is
unable to unanimously agree upon a resolution to all or any of such disputes
within fifteen (15) days following their submission, the remaining disputes
shall be submitted for resolution to a nationally recognized independent
accounting firm that is not the primary auditor of any of the Members and 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 Contributing Member shall each select such an accounting firm and
such accounting firms shall select a third nationally recognized independent
accounting firm, that is not the primary auditor of any of the Members, to
resolve the disputes.


 


(b)                                 If the Company, Solae,
LLC or any other Person directly or indirectly owned by the Company incurs or
suffers any actual Damages arising out of or relating to any Adjustment Amount
as finally determined pursuant to Section 2.03(a) above, there shall be a
special allocation to the Capital Account of Contributing Member pursuant to
Section 3.3(r) of the LLC Agreement and Contributing Member shall make an
Additional Capital Contribution pursuant to Section 3.3(v) of the LLC
Agreement.  Notwithstanding the
foregoing, if the Company, Solae, LLC or any other Person directly or
indirectly owned by the Company incurs or suffers any Damages arising out of or
relating to any Adjustment Amount at a time at which Contributing Member is not
a Member of the Company (a “Former
Member Adjustment Amount”), Contributing Member shall indemnify
and hold harmless the Company, Solae, LLC and any other Person directly or indirectly
owned by the Company from such actual Damages pursuant to Section 4.01(b)
hereof.


 


Section 2.04                                Treatment
of Excluded Liabilities.


 


If the Company, Solae, LLC or any other
Person directly or indirectly owned by 


 


10

















 


the Company incurs or suffers any Damages
arising out of or relating to any Excluded Liability, there shall be a special
allocation to the Capital Account of Contributing Member pursuant to Section
3.3(i) of the LLC Agreement and Contributing Member shall make an Additional
Capital Contribution pursuant to Section 3.3(v) of the LLC Agreement.  Notwithstanding the foregoing, if the
Company, Solae, LLC or any other Person directly or indirectly owned by the
Company incurs or suffers any Damages arising out of or relating to any
Excluded Liability at a time at which Contributing Member is not a Member of
the Company (a “Former
Member Excluded Liability”), Contributing Member shall indemnify
and hold harmless the Company, Solae, LLC and any other Person directly or
indirectly owned by the Company from such actual Damages pursuant to Section
4.01(b) hereof.


 


Section 2.05                                Conveyance
Documents.


 


To
further effect the contribution of the Contributed Property as contemplated by
this Article II, Contributing Member shall execute and deliver, or cause to be
executed and delivered, all of the Conveyance Documents and all such additional
documents or instruments of assignment, transfer or conveyance, in each case
dated as of the Contribution Date, as may be necessary or appropriate to
transfer to the Company all right, title and interest in and to the Contributed
Property.


 


Section 2.06                                Effect
of Contributions.


 


In
exchange for its initial Capital Contribution of the Contributed Property (a)
Contributing Member shall receive 28.06% of the total Membership Interests of
the Company and (b) the Capital Account of Contributing Member shall be
credited as set forth in the LLC Agreement.


 


ARTICLE III


 


REPRESENTATIONS,
WARRANTIES AND COVENANTS


 


Section 3.01                                Contributing
Member Representations and Warranties.


 


Contributing
Member represents and warrants to the Company that as of the Effective Time:


 


(a)                                  Organization. 
(i) Contributing Member is a corporation, duly organized and validly
existing under the laws of Indiana, (ii) CS Denmark is a corporation, duly
organized and validly existing under the laws of Denmark; (iii) CS France is a
corporation, duly organized and validly existing under the laws of France, (iv)
SOGIP is a corporation, duly organized and validly existing under the laws of
France, (v) CS Germany is a corporation, duly organized and validly existing
under the laws of Germany, (vi) CS Dominican is a corporation, duly organized
and validly existing under the laws of the Dominican Republic, Stern is a corporation,
duly organized and validly existing under the laws of Germany, (vii) Lecithins
Germany is a corporation, duly organized and validly existing under the laws of
Germany, (viii) Lecithins France is a corporation, duly organized and validly
existing under the laws of France, (ix) CS Italy is a corporation, duly
organized and validly existing under the laws of Italy and (x) CS Protomed is a
corporation, duly organized and validly existing under the laws of
Delaware.  Each 


 


11

















 


of
Contributing Member and the Entities has all requisite power and authority to
own, lease and operate its properties and assets and to carry on its business
as now being conducted.


 


(b)                                 Qualification. 
(i) Contributing Member is duly licensed or qualified to do business as
a foreign entity in all jurisdictions in which the property owned or leased by
it or the activities conducted by it require it to be so qualified (except
where the failure to so qualify would not have a material adverse effect on the
ability of Contributing Member to perform its obligations under this Agreement,
the LLC Agreement or
the Conveyance Documents), and (ii) each of the Entities is duly licensed or
qualified to do business as a foreign entity  in
all jurisdictions in which the property owned or leased by it or the activities
conducted by it require it to be so qualified (except where the failure to so
qualify would not have a Material Adverse Effect).


 


(c)                                  Authority. 
(i) Contributing Member has the power and authority to execute and
deliver this Agreement, the LLC Agreement and the Conveyance Documents and to
carry out its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, (ii) the execution and delivery
by Contributing Member of this Agreement, the LLC Agreement and the Conveyance
Documents, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by its governing body, (iii) no other action
on the part of Contributing Member or any other Person, whether pursuant to its
constituent documents or by law or otherwise, is necessary to authorize
Contributing Member to enter into this Agreement, the LLC Agreement or the
Conveyance Documents, or to consummate the transactions contemplated hereby or
thereby, (iv) each of this Agreement, the LLC Agreement and the Conveyance
Documents has been duly executed and delivered by Contributing Member and
(v) each of this Agreement, the LLC Agreement and the Conveyance Documents
is the legal, valid and binding obligation of Contributing Member, enforceable
against Contributing Member, in accordance with its terms.


 


(d)                                 No Violation. 
Except as set forth on Schedule 3.01(d), neither the execution
nor delivery by Contributing Member of this Agreement, the LLC Agreement or the
Conveyance Documents, nor the consummation of the transactions contemplated
hereby or thereby: (i) requires any filing or registration with, notification
to, permission of or any action or order by any Governmental Authority with
respect to Contributing Member, the Entities or the Company, (ii) (A) violates
or will violate any order, writ, injunction, judgment, decree or award or (B)
violates or will violate or conflict with any Applicable Law to which Contributing
Member or the Entities or any of their properties or assets or their businesses
are subject as of the Effective Time, (iii) violates or will violate, or
conflicts with or will conflict with any provision of, or constitutes a default
under the constituent documents of Contributing Member or the Entities,
(iv) conflicts with, violates, breaches or constitutes a material default
(or an event which, with notice or lapse of time or both, would constitute a
material default) under, requires any consent under, or gives rise to a right
to terminate, amend, accelerate, suspend, revoke or cancel any, mortgage,
contract, agreement, deed of trust, license, lease or other instrument,
arrangement, commitment, obligation, understanding or restriction of any kind
to which Contributing Member or the Entities is a party or by which their
assets or properties may be subject or bound, or (v) results in the creation or
imposition of any Lien in favor of any third party with respect to the
Contributed Assets, the Entity Assets or the Contributed Stock, and in the case
of clause (iv) above, which conflict, violation, breach, default, liability or
obligation, individually or in the aggregate, has or would reasonably be likely
to have (A) a Material 


 


12

















 


Adverse Effect or (B) a material adverse
effect on (1) the ability of Contributing Member or, following the Effective
Time, the Company to perform its obligations under this Agreement, the LLC
Agreement or any Conveyance Document or to own and operate the Contributed
Assets or the Contributed Stock in the manner in which the Contributed Assets
and the Contributed Stock are currently owned and operated by Contributing
Member or (2) the ability of any of the Entities to own and operate the Entity
Assets in the manner in which the Entity Assets are currently owned and
operated by the Entities.


 


(e)                                  Litigation.  Except as set forth on Schedule 3.01(e),
there are no actions, suits, claims or proceedings (“Actions”) pending or, to the knowledge of Contributing
Member, the Entities or Bunge, threatened, that relate to the Contributed
Assets, the Entity Assets or the Contributed Stock or any of their other assets
or properties which individually or in the aggregate (i) have, or could reasonably
be likely to have, a material adverse effect on the ability of the Company,
following the Effective Time, to own and use the Contributed Assets or the
Contributed Stock in the manner in which the Contributed Assets and the
Contributed Stock are currently owned and used or on the ability of any of the
Entities to own and use the Entity Assets in the manner in which the Entity
Assets are currently owned and used or (ii) could reasonably be expected to
affect the legality, validity or enforceability of this Agreement, the LLC
Agreement or the Conveyance Documents or the consummation of the transactions
contemplated hereby or thereby.  There
are no Actions pending or, to the knowledge
of Contributing Member or Bunge, threatened, that question or challenge the validity
of this Agreement, the LLC Agreement or the Conveyance Documents or any action
taken or to be taken by Contributing Member pursuant to this Agreement, the LLC
Agreement or the Conveyance Documents or in connection with the transactions
contemplated hereby or thereby.


 


(f)                                    Title.


 


(i)                                     Contributing
Member owns and has good and marketable title to all of the Contributed Assets
(including, but not limited to, those set forth in Schedule 2.01(a)), in
each case free and
clear of all Liens (other than Permitted Liens);


 


(ii)                                  Contributing
Member owns, in each case free and clear of all Liens (other than Permitted
Liens), (A) one hundred percent (100%) of all of the issued and outstanding
shares of capital stock of: CS Denmark, CS France, CS Germany and CS Dominican
(other than six (6) shares in CS Dominican; certificates for which have been
endorsed in blank), (B) 187,500 shares of SOGIP (constituting seventy-five
percent (75%) of all of the issued and outstanding shares of capital stock of
SOGIP) and (C) 50,000 Series B Convertible Preferred Shares of CS
Protomed.  CS Germany owns, in each case
free and clear of all Liens (other than Permitted Liens), (A) one hundred
percent (100%) of all of the issued and outstanding shares of capital stock of
Stern and (B) ninety-six percent (96%) of all of the partnership interest of
Lecithins Germany.  Stern owns four
percent (4%) of all of the partnership interest of Lecithins Germany, free and
clear of all Liens (other than Permitted Liens).  Lecithins Germany owns, in each case free and clear of all Liens
(other than Permitted Liens), one hundred percent (100%) of all of the issued
and outstanding shares of capital stock of Lecithins France and CS Italy;


 


(iii)                             Each
of the Entities owns and has good and marketable title to 


 


13

















 


their respective Entity Assets, in each case
free and clear of all Liens (other than Permitted Liens);


 


(iv)                              Immediately
following the consummation of the transactions contemplated by this Agreement,
the LLC Agreement and the Conveyance Documents, the Company will own the
Contributed Property free and clear of all Liens (other than Permitted Liens);
and


 


(v)                               Immediately
following the consummation of the transactions contemplated by this Agreement,
the LLC Agreement and the Conveyance Documents, each of the Entities will own
all of their respective Entity Assets free and clear of all Liens (other than
Permitted Liens).


 


(g)                                 Taxes.  Each of Contributing Member and the Entities
have duly filed all returns or reports with respect to any U.S. federal, state,
local and foreign Taxes required to be filed by it, which returns or reports
were true, correct and complete in all material respects.  Each of Contributing Member and the Entities
have paid all Taxes reflected in such returns and reports and all other Taxes
due from it to any Governmental Authority (except for those Taxes properly
contested and accrued for).  Except as
disclosed in Schedule 3.01(g), there are no Liens for Taxes on any of
the Contributed Assets or the Contributed Stock.  All Taxes of each of Contributing Member and the Entities have
been paid by it on or before the due date therefor (except for those Taxes
properly contested and accrued for).


 


(h)                                 Brokers.  Neither Bunge nor Contributing Member has
incurred or will incur any broker’s, finder’s, investment banking or similar
fee in connection with the transactions completed by this Agreement, the LLC
Agreement or the Conveyance Documents, and neither Bunge nor Contributing
Member has made any statement or representation that could form the basis for
any claim for any such fee.


 


(i)                                     Permits.  Contributing Member or its Affiliates have
all Permits that are required for the ownership, use and operation of the
Contributed Assets and the Entity Assets (including, without limitation,
environmental Permits), except for Permits the absence of which do not have a
Material Adverse Effect.  Neither
Contributing Member nor the Entities are in default in respect of any Permits,
except for defaults that, individually or in the aggregate, do not and will not
have a Material Adverse Effect.  There
are no pending, and none of Contributing Member, the Entities or Bunge has any
knowledge of any threatened, proceedings that could result in the termination or
impairment of any Permits with respect to the Contributed Assets or the Entity
Assets.


 


(j)                                     Intellectual
Property.


 


(i)                                     All
material registrations and filings, including maintenance and renewal fees,
necessary to preserve the rights of Contributing Member (and its Affiliates) in
respect of the Intellectual Property that consist of patents, patent
applications, continuations, continuations in part, divisions, reissues,
extensions, substitutions and supplemental protection certificates thereof and
registered trademarks and trade names, and recipes have been made and are in
good standing;


 


14

















 


(ii)                                  No
Claims have been made and no proceedings have been instituted or are pending
that challenge any material rights with respect to the ownership, use, validity
or enforceability of the Intellectual Property.  Neither Contributing Member nor its Affiliates are subject to any
outstanding injunction, judgment, order, decree, ruling or settlement involving
the Intellectual Property;


 


(iii)                               The
Intellectual Property constitutes all of the intellectual property that is
reasonably necessary to own, operate and use the Contributed Assets and the
Entity Assets as currently owned, operated and used and constitutes all of the
material intellectual property used to own, operate and use the Contributed
Assets and the Entity Assets as currently owned, operated and used;


 


(iv)                              Except
as set forth in Schedule 3.01(j), Contributing Member owns all right,
title and interest in, or has the right to use, that part of the Intellectual
Property relating to the Contributed Assets, the ownership of which is to be
conveyed to the Company under this Agreement free of all Liens, and currently
has the right to use all of such Intellectual Property;


 


(v)                                 Except
as set forth in Schedule 3.01(j), the Entities own all right, title and
interest in, or have the right to use, their respective part of the
Intellectual Property relating to the Entity Assets;


 


(vi)                              To
each of Contributing Member’s, the Entities’ and Bunge’s knowledge, neither
Contributing Member nor its Affiliates nor end users of products have infringed
upon or misappropriated any intellectual property rights of any third party in
the ownership, operation or use of the Contributed Assets or the Entity Assets;


 


(vii)                           Neither
Contributing Member nor its Affiliates have threatened or instituted a Claim
against any Person alleging that such Person infringes the Intellectual
Property;


 


(viii)                        Except as
set forth in Schedule 3.01(j), neither Contributing Member nor its
Affiliates have granted to any Person any options, licenses or agreements
relating to the Intellectual Property; and


 


(ix)                              Neither
Contributing Member nor its Affiliates have agreed to indemnify any Person
against any charge of infringement arising out of the ownership, operation or
use of the Contributed Assets or the Entity Assets.


 


(k)                                  Contributed Assets
and Entity Assets.


 


(i)                                   The
Contributed Assets and the Entity Assets constitute all of the assets necessary
for Bunge and its Affiliates to operate that portion of their business being
contributed to the Company as such portion is currently operated by
Contributing Member and its Affiliates.


 


(ii)                                  The
Gibson City Distribution Center Lease and the Bellevue Distribution Center
Leases are in full force effect and are fully assignable to the Company and
constitute the legal, valid and binding obligations of the parties thereto and
there are no material breaches of any such agreements by any of the parties
thereto.


 


15

















 


(iii)                               After
the consummation of the transactions contemplated by this Agreement and the
Conveyance Documents, the Company shall have the right to own, operate and use
the Contributed Assets to the same extent they are currently owned, operated
and used.


 


(iv)                              After
the consummation of the transactions contemplated by this Agreement and the
Conveyance Documents, each of the Entities shall have the right to own, operate
and use their respective Entity Assets to the same extent they are currently
owned, operated and used.


 


(v)                                 No
Action has been made or asserted or is pending and, to the knowledge of
Contributing Member and Bunge, no Action has been threatened, either (A) based
upon or challenging or seeking to deny or restrict the ownership, operation or
use of any of the Contributed Assets or the Entity Assets or (B) alleging that
any services provided, or products manufactured or sold, or intangible property
being licensed or used, with respect to the Contributed Assets or the Entity
Assets, are being manufactured, sold, provided, licensed or used in violation
of any intellectual property rights.


 


(l)                                     Compliance
with Applicable Law; Adverse Restrictions. 
The operations relating to the Contributed Assets and the operations
related to the Entity Assets are being conducted in material compliance with
(i) all applicable Permits and orders, writs, injunctions, judgments, decrees
or awards of all courts and (ii) all Applicable Laws.  The Contributed Property and the Entity Assets are currently
owned, operated and used in compliance in all material respects with all
Applicable Laws.  Neither Contributing
Member nor its Affiliates have received, during the two (2) years prior to the
date of this Agreement, any written notice from a Governmental Authority that
alleges that Contributing Member or its Affiliates are in violation of any
Applicable Law, except for any such violations that, individually or in the
aggregate, would not have a Material Adverse Effect.


 


(m)                               Consents;
Approvals.  Except as set forth on Schedule
3.01(m), Contributing Member has obtained all material consents, approvals
and authorizations necessary for the consummation by it of the transactions
contemplated by this Agreement, the Conveyance Documents and the LLC Agreement.


 


(n)                                 Ordinary
Course; No Destruction; No Material Adverse Effect.  Since July 1, 2002, (i) the Contributed
Assets and the Entity Assets have been used and operated in the Ordinary
Course, (ii) the Assumed Liabilities listed on Schedule 1.01(a) and
Contributing Member’s and the Entities’ other liabilities have been incurred
and paid in the Ordinary Course, (iii) Contributing Member’s and the Entities’
respective inventory and receivables have been acquired, maintained and/or
collected in the Ordinary Course, (iv) no destruction of, or damage to, or loss
of, any Contributed Asset or Entity Asset (whether or not insured) that has not
been repaired or replaced in excess of $250,000 has occurred and (v) no event
or occurrence that would result in a Material Adverse Effect or would
reasonably be likely to result in a Material Adverse Effect has occurred.


 


(o)                                 HCS
Nutritional Resources, L.L.C.  A
certificate of cancellation has been filed with the Secretary of State of the
State of Delaware to dissolve HCS Nutritional Resources, L.L.C., a joint
venture between Central Soya and Cognis Corporation, and its operations have 


 


16

















 


been wound up.


 


(p)                                 Books
and Records.  Since July 1, 2002,
Contributing Member and the Entities have maintained their respective books and
records in the Ordinary Course and in accordance with the generally accepted
accounting principles then in effect in their respective jurisdictions.


 


(q)                                 No
Debt. Except as expressly referenced in Section 3.03 hereof, none of
Entities has, and none of the Contributed Property or the Entity Assets are
subject to, any existing and outstanding indebtedness.


 


Section 3.02                                Cooperation.


 


To the extent
that any Permits, Claims, Warranties or contracts (including, but not limited
to, any contracts listed as Contributed Assets in Section 2.01) relating to the
ownership or use of any of the Contributed Assets or the Entity Assets (a)
cannot be assumed by, or assigned or transferred to, the Company without the
consent of another party or the satisfaction of some other condition, and such
consent has not been obtained or condition satisfied as of the Effective Time
or (b) require consent to any of the transactions contemplated hereunder
(including, but not limited to, any change of control provisions with respect
thereto) or the satisfaction of some other condition as a result of the
transactions contemplated hereunder, each of the parties hereto agrees to use
its commercially reasonable best efforts (including, but not limited to,
cooperating with the other in any reasonable arrangement) to enable
Contributing Member and its Affiliates to perform their obligations thereunder,
and to provide for the Company and the Entities the benefits thereof, including
without limitation, enforcement at reasonable cost, and for the account of the
Company or the Entities (as the case may be), of any and all rights of any of
Contributing Member or their Affiliates against the other party thereto arising
out of the breach or cancellation thereof by such other party or otherwise.
Contributing Member shall promptly pay to the Company or the Entities (as the
case may be) all monies received by it or any of its Affiliates in connection
with any of the foregoing.  The parties
acknowledge and agree that the Bellevue Distribution Center Leases will be
assigned as soon as the consent of the lessor thereunder has been obtained and
that for the interim period the parties have entered into a sublease with
respect to the Bellevue Distribution Center.


 


Section 3.03                                Cash.  Subject to the remaining clauses of this
Section 3.03, the parties acknowledge and agree that immediately prior to
Contributing Member entering into this Agreement, Contributing Member caused,
to the extent permitted under Applicable Law, all of the cash collected and
available to the Entities at the close of business on March 31, 2003 to be
distributed.  Notwithstanding the
foregoing, Contributing Member shall contribute to the Company on April 1, 2003
an amount equal to the estimated outstanding principal balance (and all accrued
and unpaid interest thereon) at the close of business on March 31, 2003 of any
indebtedness of the Entities to (i) Cereol S.A. or any Affiliate of Cereol S.A.
pursuant to intercompany loans in effect at the close of business on March 31,
2003 and (ii) to any third parties in effect at the close of business on March
31, 2003 (the total amount of all such indebtedness, including accrued and
unpaid interest thereon, the “Indebtedness” and the amount of such contribution, the “Cash Contribution”)
..  Within two (2) business days after
the Effective Time the actual amount of the Indebtedness shall be determined
and if the Cash Contribution is less than the actual Indebtedness Contributing
Member shall promptly contribute 


 


17

















 


an amount equal to the
shortfall and if the Cash Contribution is more than the actual Indebtedness,
the Company shall promptly pay such excess amount to Contributing Member.  Any payment to the Company or distribution
from the Company in accordance with the preceding sentence shall be made in
U.S. Dollars and the exchange rate shall be calculated utilizing the midrate
exchange rates at the close of business on March 31, 2003 New York time as
published by Bloomberg without regard to the exchange rate on the date the
Indebtedness is paid.


 


Section 3.04                                Breach.  If the Company, Solae, LLC or any other
Person directly or indirectly owned by the Company incurs or suffers any actual
Damages arising out of or relating to any Breach, there shall be a special
allocation to the Capital Account of Contributing Member pursuant to Section
3.3(k) of the LLC Agreement and Contributing Member shall make an Additional
Capital Contribution pursuant to Section 3.3(v) of the LLC Agreement.  Notwithstanding the foregoing, if the
Company, Solae, LLC or any other Person directly or indirectly owned by the
Company incurs or suffers any Damages arising out of or relating to any Breach
at a time at which Contributing Member is not a Member of the Company (a “Former Member Breach”),
Contributing Member shall indemnify and hold harmless the Company, Solae, LLC
and any other Person directly or indirectly owned by the Company from such
actual Damages pursuant to Section 4.01(b) hereof.


 


Section 3.05                                HCS
Inventory.  If the Company is
unable, despite using its commercially reasonable efforts, to sell all of the
inventory purchased by the Company from HCS Nutritional Resources, LLC within
one (1) year following such purchase, Contributing Member shall pay to the
Company an amount equal to the percentage of such inventory then remaining
times $328,125.


 


Section 3.06                                Insurance.   Contributing Member shall provide or cause
to be provided insurance for the Contributed Assets and the Entity Assets
through Bunge’s existing Property/Business Interruption insurance until May 31,
2003, or adoption of new coverage for all of the Company’s assets, whichever is
sooner.  The terms of such insurance
shall include a deductible of $1,000,000. 
The Company shall pay the first $1,000,000 of any property loss.  Contributing Member or its Affiliates shall
charge the Company and the Company shall pay its allocable portion of Bunge’s
existing property insurance. 
Contributing Member will continue or cause to be continued Bunge’s
existing marine coverage for the operations of the Contributed Assets and the
Entity Assets until May 1, 2003.  The
Company shall pay to Bunge its allocable portion of Bunge’s existing marine
coverage.  The Company shall pay all
amounts owing under this Section 3.06 to Contributing Member within fifteen
(15) days of the Company’s receipt of an invoice therefor.


 


ARTICLE IV


 


SURVIVAL; INDEMNIFICATION; TAXES


 


Section 4.01                                Survival;
Indemnification.


 


(a)                                  The
covenants, agreements, representations and warranties of Contributing Member
and the Company contained herein or in any certificate or other writing
delivered pursuant hereto or in connection herewith and any indemnification
obligations contained in this 


 


18

















 


Article IV shall survive for a
period of three (3) years after the Effective Time; provided, however, that
with respect to Tax matters, any covenants, agreements, indemnity obligations,
representations or warranties shall survive until 180 days after the expiration
of the applicable statutory period of limitations (giving effect to any waiver
or extension thereof).  Notwithstanding
the preceding, any indemnification obligations in respect of which indemnity
may be sought under this Article IV shall survive the time at which it would
otherwise terminate pursuant to such sentence if notice of such indemnification
Claim shall have been given to the party against whom such indemnity may be
sought, prior to such time.


 


(b)                                 Contributing
Member hereby agrees to indemnify each Company Indemnitee against and agrees to
hold it harmless from any and all actual Damages incurred or suffered by such
Company Indemnitee arising out of or relating to any Former Member Liability.


 


(c)                                  Contributing
Member hereby agrees to indemnify each Company Indemnitee (other than the
Company, Solae, LLC or any Person directly or indirectly owned by the Company)
against and agrees to hold it harmless from any and all actual Damages incurred
or suffered by such Person arising out of or relating to any Excluded
Liability, Breach or Former Member Liability.


 


To the extent
that Contributing Member’s indemnification obligations set forth in this
Section 4.01 may be unenforceable because they are violative of any Applicable
Law or public policy, Contributing Member shall contribute the maximum portion
that it is permitted to pay and satisfy under Applicable Law to the payment and
satisfaction of all actual Damages incurred by the Indemnified Party.


 


Section 4.02                                Liability
Threshold.


 


No
indemnification shall be payable by Contributing Member as a result of a claim
arising under Section 4.01 unless the aggregate amount of all such actual
Damages thereunder exceeds an amount equal to $1,000,000, and then Contributing
Member shall have liability for the full amount of such actual Damages.


 


Section 4.03                                Control
of Litigation.


 


Each Person
entitled to indemnification as provided under Section 4.01 (the “Indemnified Party”)
shall give written notice (the “Claim Notice”) to Contributing Member of the assertion
of any Claim or the commencement of any suit, action or proceeding in respect
of which indemnity may be sought under Section 4.01 hereof and of any Damages
which any such Indemnified Party deems to be within the scope of Section 4.01 within
fifteen (15) days following such assertion, commencement or incurrence of
Damages of which the Indemnified Party is actually aware and shall give
Contributing Member such information with respect thereto as Contributing
Member may reasonably request.  Contributing Member may, at its option and at its own expense, (a)
participate in and (b) upon written notice to the Indemnified Party, within
fifteen (15) days of receipt of the Claim Notice, assume the defense of, any
such suit, action or proceeding; provided that (i) the counsel of Contributing
Member is reasonably satisfactory to the Indemnified Party, (ii) Contributing
Member shall consult with the Indemnified Party, upon the reasonable request of
the Indemnified Party, from time to time with respect to such suit, action or
proceeding and (iii) Contributing Member shall not settle or 


 


19

















 


compromise any such suit,
action or proceeding without the written consent of the Indemnified Party,
which consent shall not be unreasonably withheld; provided, however, that if
Contributing Member reasonably desires to settle or compromise and the
Indemnified Party rejects such reasonable settlement or compromise, then the
Indemnified Party shall be liable for any and all Damages in excess of the
amount of the rejected reasonable settlement or compromise.  If Contributing Member assumes such defense,
the Indemnified Party shall have the right (but not the duty) to participate in
the defense thereof and to employ counsel, at its own expense, separate from
the counsel employed by Contributing Member. 
Contributing Member shall be liable for the fees and expenses of counsel
employed by the Indemnified Party with respect to any period during which
Contributing Member has not assumed the defense of any such action or
proceeding in respect of which indemnity is required hereunder; provided,
however, that Contributing Member shall not be liable for the fees and expenses
of more than one counsel employed by the Indemnified Party, in any
jurisdiction, except that if the Indemnified Party has a conflict of interest
with any other Indemnified Party, the Indemnified Party is entitled to have
separate counsel at the expense of Contributing Member until such time as
Contributing Member assumes the defense. 
If Contributing Member does not assume the defense and the Indemnified
Party assumes the defense thereof, (A) Contributing Member shall have the right
(but not the duty) to participate in the defense thereof and employ counsel, at
its own expense, (B) such Indemnified Party shall consult with Contributing
Member, upon the reasonable request of Contributing Member, from time to time
with respect to such suit, action or proceeding and (C) the Indemnified Party
shall not settle or compromise any such suit, action or proceeding without the
consent of Contributing Member, which consent shall not be unreasonably
withheld.


 


Section 4.04                                Taxes.



 


(a)                                If,
at anytime, the Company, Solae, LLC or any other Person directly or indirectly
owned by the Company incurs or suffers any US Tax assessment with respect to
any Taxes of Contributing Member or any of the Entities relating to or arising
from any Pre-Effective Time Tax Period (a “US Tax Assessment”), there shall be a
special allocation to the Capital Account of Contributing Member pursuant to
Section 3.3(m) of the LLC Agreement and Contributing Member shall make an
Additional Capital Contribution pursuant to Section 3.3(v) of the LLC
Agreement.  Notwithstanding the
foregoing, if the Company, Solae, LLC or any other Person directly or
indirectly owned by the Company incurs or suffers any US Tax Assessment at a
time at which Contributing Member is not a Member of the Company (a “Former Member US Tax Assessment”),
Contributing Member shall indemnify and hold harmless the Company, Solae, LLC
and any other Person directly or indirectly owned by the Company from such
Former Member US Tax Assessment pursuant to Section 4.01(b) hereof.


 


(b)                                 If,
at anytime, the Company, Solae, LLC or any other Person directly or indirectly
owned by the Company incurs or suffers any Foreign Tax assessment with respect
to any Taxes of Contributing Member or any of the Entities relating to or
arising from any Pre-Effective Time Tax Period (a “Foreign Tax Assessment”), there shall
be a special allocation to the Capital Account of Contributing Member pursuant
to Section 3.3(o) of the LLC Agreement and Contributing Member shall make an
Additional Capital Contribution pursuant to Section 3.3(v) of the LLC
Agreement.  Notwithstanding the
foregoing, if the Company, Solae, LLC or any other Person directly or
indirectly owned by the Company incurs or suffers any Foreign Tax Assessment at
a time at which Contributing Member is not a Member of the Company (a “Former Member Foreign Tax Assessment”),
Contributing Member shall indemnify and hold 


 


20

















 


harmless the Company, Solae,
LLC and any other Person directly or indirectly owned by the Company from such
Former Member Foreign Tax Assessment pursuant to Section 4.01(b) hereof.


 


(c)                                  If,
at anytime, the Company, Solae, LLC or any other Person directly or indirectly
owned by the Company receives any US Tax refund with respect to any Taxes of
Contributing Member or any of the Entities relating to or arising from any
Pre-Effective Time Tax Period (a “US Tax Refund”), there shall be a special
allocation to the Capital Account of Contributing Member pursuant to Section
3.3(w) of the LLC Agreement and the Company shall make a cash distribution
pursuant to Section 3.3(aa) of the LLC Agreement.  Notwithstanding the foregoing, if the Company, Solae, LLC or any
other Person directly or indirectly owned by the Company receives any US Tax
Refund at a time at which Contributing Member is not a Member of the Company,
the Company shall promptly pay an amount equal to the US Tax Refund to
Contributing Member.


 


(d)                                 If,
at anytime, the Company, Solae, LLC or any other Person directly or indirectly
owned by the Company receives any Foreign Tax refund with respect to any Taxes
of Contributing Member or any of the Entities relating to or arising from any
Pre-Effective Time Tax Period (a “Foreign Tax Refund”), there shall be a
special allocation to the Capital Account of Contributing Member pursuant to
Section 3.3(y) of the LLC Agreement and the Company shall make a cash
distribution pursuant to Section 3.3(aa) of the LLC Agreement. Notwithstanding
the foregoing, if the Company, Solae, LLC or any other Person directly or
indirectly owned by the Company receives any Foreign Tax Refund at a time at
which Contributing Member is not a Member of the Company, the Company shall
promptly pay an amount equal to the Foreign Tax Refund to Contributing Member.


 


Section 4.05                                Transfer
Taxes.


 


Contributing
Member shall pay, or cause to be paid, all Taxes imposed on any transfers of
the Contributed Assets or the Contributed Stock to the Company (the “Transfer Taxes”).  The Company shall pay, or cause to be paid,
all Taxes imposed on any subsequent transfers of the Contributed Assets after
the Effective Time (including, but not limited to, the Company’s transfer of
the Contributed Assets to Solae, LLC). 
If, at anytime, the Company, Solae, LLC or any other Person directly or
indirectly owned by the Company incurs or suffers any Tax assessment with
respect to any Transfer Taxes (a “Transfer Tax Assessment”), there shall be a
special allocation to the Capital Account of Contributing Member pursuant to
Section 3.3(m) of the LLC Agreement and Contributing Member shall make an
Additional Capital Contribution pursuant to Section 3.3(v) of the LLC
Agreement.  Notwithstanding the
foregoing, if the Company, Solae, LLC or any other Person directly or
indirectly owned by the Company incurs or suffers any Transfer Tax Assessment
at a time at which Contributing Member is not a Member of the Company (a “Former Member Transfer Tax
Assessment”), Contributing Member shall indemnify and hold
harmless the Company, Solae, LLC and any other Person directly or indirectly
owned by the Company from such Former Member Transfer Tax Assessment pursuant
to Section 4.01(b) hereof.


 


21

















 


Section 4.06                                Cooperation
on Tax Matters.


 


Contributing
Member and the Company shall cooperate fully, as and to the extent reasonably
requested by the other party, in connection with any audit, litigation or other
proceeding with respect to Taxes.  Such
cooperation shall include the retention and (upon the other party’s reasonable
request) the provision of records and information that are reasonably relevant
to any such audit, litigation or other proceeding, and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder.  The Company and Contributing Member agree to retain all books and
records that are relevant to the determination of the Tax liabilities pertinent
to the Contributed Assets, the Entity Assets or the Contributed Stock relating
to any Pre-Effective Time Tax Period until the expiration of the applicable statute
of limitations, and to abide by all records retention agreements entered into
with any taxing authority.


 


ARTICLE V


 


MISCELLANEOUS PROVISIONS


 


Section 5.01                                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 at such other
address for a party as shall be specified by like notice):


 


If to
Contributing Member:


 


Central Soya
Company, Inc.


c/o Bunge
Management Services


50 Main
Street, 6th Floor


White Plains,
NY 10606


Attention:
Andrew J. Burke


Facsimile:
(914) 684-3417


 


With a Copy
to:


 


Legal
Department


Bunge
Management Services, Inc.


50 Main
Street, 6th Floor


White Plains,
NY 10606


Facsimile:
(914) 684-3417


 


If to the
Company:


 


22

















 


Solae Holdings
LLC


1034 Danforth
Drive


St. Louis,
Missouri 63102


United States
of America


Facsimile:
(314) 982-2461


 


Section 5.02                                Successors
and Assigns and Assignment.


 


This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided, that neither this
Agreement nor any of the rights hereunder may be assigned by any of the parties
hereto without the prior written consent of the other party.


 


Section 5.03                                Construction.


 


It is the
intent of the parties hereto that every covenant, term, and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any party.


 


Section 5.04                                Headings.


 


The article
and section headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.


 


Section 5.05                                Severability.


 


If any one or
more provisions contained in this Agreement shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.


 


Section 5.06                                Governing
Law.


 


The laws of
the State of Delaware, without application of the conflicts of laws principles
thereof, shall govern the validity of this Agreement, the construction of its
terms, and the interpretation of the rights and duties arising hereunder.


 


Section 5.07                                Consent
to Jurisdiction.


 


Each party
hereto (a) irrevocably submits to the non-exclusive jurisdiction of any
Delaware or Missouri State court or Federal court sitting in Wilmington,
Delaware or St. Louis, Missouri in any action arising out of this Agreement,
(b) agrees that all claims in such action may be decided in such court, (c)
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum, and (d) consents, to the fullest extent it may effectively
do so, to the service of process by mail in accordance with Section 5.01
hereof.  A final non-appealable judgment
of any such court shall be conclusive and may be enforced in other
jurisdictions.  


 


23

















 


Nothing herein shall affect the
right of any party to serve legal process in any manner permitted by law or
affect its right to bring any action in any other court.


 


Section 5.08                                Waiver
of Jury Trial.


 


EACH OF THE
PARTIES HERETO 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
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT.


 


Section 5.09                                Counterpart
Execution.


 


This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument and shall become a binding Agreement when one or more of the
counterparts have been signed by Contributing Member and the Company and
delivered to the other party.


 


Section 5.10                                Specific
Performance.


 


Each of the
parties acknowledges that money damages would not be a sufficient remedy for
any breach of this Agreement and that irreparable harm would result if this
Agreement were not specifically enforced. 
Therefore, the rights and obligations of the parties under this
Agreement shall be enforceable by a decree of specific performance issued by
any court of competent jurisdiction, and appropriate injunctive relief may be
applied for and granted in connection therewith. A party’s right to specific
performance shall be in addition to all other legal or equitable remedies
available to such party.


 


Section 5.11                                No
Material Impairment.


 


No party
hereto shall take any action that could materially impair such party’s ability
to perform its duties or obligations under this Agreement.


 


Section 5.12                                Entire
Agreement.


 


This Agreement
including the exhibits, schedules, other documents and instruments referred to
herein, together with the LLC Agreement and the Conveyance Documents,
constitute the entire agreement among the parties hereto and their respective
Affiliates and contain all of the agreements among such parties with respect to
the subject matter hereof and thereof. 
This Agreement supersedes any and all other agreements, either oral or
written, between such parties with respect to the subject matter hereof.


 


Section 5.13                                Waiver
of Compliance; Consents.


 


Any failure of
a party to comply with any obligation, covenant, agreement or condition herein
may be waived by the other party; provided, however, that any such waiver may
be made only by a written instrument signed by the party granting such waiver
and provided, further, that such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on


 


24

















 


behalf of any party hereto,
such consent shall be given in writing in a manner consistent with the
requirements for a waiver of compliance as set forth in this Section 5.13, with
appropriate notice in accordance with Section 5.01 hereof.


 


Section 5.14                                Third
Party Beneficiaries.


 


Each Member of
the Company (other than Contributing Member or its transferees) shall be a
third party beneficiary of this Agreement and, except as otherwise provided
herein, shall be entitled to the benefits of the Company set forth herein.  Except as expressly provided herein, nothing
in this Agreement is intended or shall be construed to confer upon any Person,
other than the parties and their respective successors and permitted assigns,
any rights, remedy or claim under or by reason of this Agreement or any
provision contained herein.


 


Section 5.15                                Amendment
and Modification.


 


This Agreement
may be amended, modified or supplemented only by a written agreement of each of
the parties hereto.


 


Section 5.16                                Schedules.


 


All Schedules
attached hereto are hereby incorporated herein and made a part hereof as if set
forth in full herein.


 


Section 5.17                                Inconsistency
or Conflict.


 


In the event
of any inconsistency or conflict between any provision of this Agreement and
any provision of the Conveyance Documents, the provision of this Agreement
shall govern. In the event of any inconsistency or conflict between any
provision of this Agreement and any provision of the LLC Agreement, the
provision of the LLC Agreement shall govern.


 


Section 5.18                                Expenses,
Etc.


 


Except as
otherwise provided herein, whether or not the transactions contemplated by this
Agreement shall be consummated, all fees and expenses (including all fees of
counsel, actuaries and accountants) incurred by any party in connection with
the negotiation and execution of this Agreement and the Conveyance Documents
shall be borne by such party.


 


Section 5.19                                Further
Assurances.


 


From time to
time, at the request of any party hereto and without further consideration, the
other party, at its own expense, will execute and deliver such other documents,
and take such other action, as such party reasonably may request in order to
consummate more effectively the transactions contemplated by this Agreement,
the Conveyance Documents or the LLC Agreement and to vest in the Company good
and marketable title to the Contributed Property.


 


[Signature Page
Follows]


 


25

















 


IN WITNESS
WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.


 


	
   

  	
   

  	
  CENTRAL SOYA COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ CENTRAL
  SOYA COMPANY, INC.

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SOLAE HOLDINGS LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ SOLAE
  HOLDINGS LLC

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title: 

  	
   

  	
   

  
							



 


 


Signature Page to Central Soya Contribution Agreement


 


26

















 


Schedule 1.01(a)


 


Liabilities


 


27

















 


Schedule 1.01(b)


 


Conveyance Documents


 


1.                    Special
Warranty Deeds for the following real estate:


•                       Cook Road
Fort Wayne, Indiana facility


•                       Gibson
City, Illinois facility


•                       New Bremen,
Ohio facility


•                       Remington,
Indiana facility


 


2.                    General
Instrument of Assignment for leases, contracts, permits and other
authorizations and for the personal property at:


•                       Cook Road
Fort Wayne, Indiana facility


•                       Gibson
City, Illinois facility


•                       New Bremen,
Ohio facility


•                       Remington,
Indiana facility


•                       Bellevue,
Ohio facility (only assets related to soy protein production and lecithin
deoiling process)


 


3.                    Share
Certificates (if any) with executed Stock Powers or Notarial Deeds (as the case
may be) for the following companies:


•                       CS Denmark


•                       CS France


•                       SOGIP


•                       CS Germany


•                       CS
Dominican


•                       Protomed


 


4.                    Assignment
of Patents and Trademarks


 


5.                    Assignment
of the following real estate leases:


•                       Lease with
Universal Financial Services L.P. for the Bellevue, Ohio distribution warehouse


•                       Lease with
Universal Financial Services L.P. for the Gibson City, Illinois distribution
warehouse


 


6.                    Assignment
of vehicle titles (if any)


 


7.                    Instrument
of Assumption for the assumption of Assumed Liabilities


 


28

















 


Schedule 1.01(c)


 


Certain Entity Assets


 


Aarhus,
Denmark Facility


 


Bordeaux,
France Facility


 


Central Soya’s
European Lecithin Business


 


[ATTACH
SCHEDULE]


 


29

















 


Schedule 2.01(a)


 


Certain Contributed Assets


 


	
  LOCATION/ASSET

  	
   

  	
  COMMENTS

  
	
  Bellevue,
  Ohio Facility

  	
   

  	
  Excluding
  the common area and processing division assets, which include white flakes
  production and standard grade lecithin manufacturing equipment.

  
	
   

  	
   

  	
   

  
	
  Gibson City,
  Illinois Facility

  	
   

  	
  Readily
  marketable inventories, including soybeans, soybean meal and soybean oil, at
  Gibson City are not included as Contributed Assets.

  
	
   

  	
   

  	
   

  
	
  New Bremen,
  Ohio Facility

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Remington,
  Indiana Facility

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fort Wayne,
  Indiana – Cook Road Facility

  	
   

  	
  Excluding
  lab equipment owned by the processing division and leased office furniture
  and equipment used by the processing division.

  



 


[ATTACH
SCHEDULE]


 


30

















 


Schedule 3.01(d)


 


Filings; Violations


 


Antitrust filings in the
following countries:


 


United States


 


South Africa


 


Romania


 


Brazil


 


Hungary


 


Germany


 


Italy


 


Bulgaria


 


Ukraine


 


Austria


 


Ireland


 


Consent of Universal Financial
Services, LP for Gibson City Distribution Center Lease


 


Consent of Universal Financial
Services, LP for Bellevue Distribution Center Leases


 


Consent of Universal Financial
Services, LP for (i) that certain Master Equipment Lease Agreement #30022-1
dated as of May 9, 


1994, Supplement to Master
Equipment Lease Agreement #30022-1 dated as of May 9, 1994, and multiple
Certificates of Acceptance thereunder dated as of various dates, (ii) that
certain Amended and Restated Equipment Lease Agreement #30004-1 dated as of
March 30, 1998, Supplement to Amended and Restated Equipment Lease Agreement
#30004-1 dated as of March 30, 1998, and Certificates of Acceptance No. 1
through No. 7 dated as of March 30, 1998 and No. 8 and No. 9 dated as of April
30, 1998, and (iii) that certain Equipment Lease Agreement #30075-1 dated as of
August 27, 1998, Supplement to Equipment Lease Agreement #30075-1 dated as of
August 27, 1998, and multiple Certificates of Acceptance thereunder dated as of
various dates, as amended demising certain leased personal property, all as in
the Leases more particularly described.


 


Consent of Sofiproteol to
transfer the shares of SOGIP constituting part of the Contributed Stock.


 


31




















Schedule 3.01(e)


 


Actions


 


Environmental Protection Agency
Notice of Violation dated February 13, 2003 relating to the Gibson City, IL
facility.


 


32

















 


Schedule 3.01(g)


 


Taxes


None.


 


33

















 


Schedule 3.01(j)


 


Intellectual Property


 


(iv)                              The
Contributing Member is a joint owner with The University of Pennsylvania of the
following patents:


 


U.S. PATENTS


 


	
  TITLE

  	
   

  	
  PATENT

  NUMBER

  	
   

  	
  Issue Date

  
	
  Method of
  Making Soybean Bowman-Birk Inhibitor Concentrate and Use of Same as a Human
  Cancer Preventative and Therapy

  	
   

  	
  5,217,717

  	
   

  	
  06/08/93

  
	
  Bowman-Birk
  Inhibitor Product for Use as An Anticarcinogenesis Agent

  	
   

  	
  5,338,547

  	
   

  	
  08/16/94

  
	
  Method of
  Inhibiting Radiation Induced Weight and Hair Loss

  	
   

  	
  5,376,373

  	
   

  	
  12/27/94

  
	
  Bowman-Birk
  Inhibitor Concentrate Compositions and Methods for the Treatment of
  Pre-Malignant Tissue

  	
   

  	
  5,505,946

  	
   

  	
  04/09/96

  



 


(vi) FOREIGN PATENTS


 


	
  TITLE

  	
   

  	
  COUNTRY

  	
   

  	
  PATENT

  NUMBER

  	
   

  	
  ISSUE DATE

  
	
  Novel
  Bowman-Birk Inhibitor Product for Use as An Anticarcinogenesis Agent

  	
   

  	
  EPO

  (entered
  regional phase in France, Great Britain, Germany, Ireland and Italy)

  	
   

  	
  0695188

  	
   

  	
  06/06/01

  



 


(viii)                        Contributing
Member has licensed on an exclusive basis all of its interests in the
inventions covered by Patent No. 5,338,547; Patent No. 5,376,373; Patent No.
5,505,946; and Patent No. 0695188 to Protomed, Inc., a Delaware corporation
having its principal office in Lake Forest, Illinois, under License Agreement
dated November 1, 1996, for use of Bowman-Birk Inhibitor product as a
diagnostic agent, pharmaceutical or nutraceutical for humans.


 


34

















 


Schedule 3.01(m)


 


Consents and Approvals


 


Antitrust Approvals in the
following countries:


 


Brazil


 


Hungary


 


Consent of Universal Financial
Services, LP for Bellevue Distribution Center Leases


 


Consent of Sofiproteol to
transfer the shares of SOGIP constituting part of the Contributed Stock.


 


 


35