Exhibit 10.2


 


GOLDEN GROWERS COOPERATIVE


UNIFORM MEMBER AGREEMENT


 


THIS AGREEMENT, is made and entered into effective as of January 1,
2010, by and between Golden Growers Cooperative, a Minnesota cooperative
association (the “Cooperative”), and the undersigned member of the Cooperative
(the “Member”).


 


WHEREAS, the Cooperative is organized for the purpose of
marketing the corn of its members through participation either directly or
indirectly in a corn processing facility; and


 


WHEREAS, the Cooperative has made certain commitments to
supply the corn of its members to third parties, and therefore desires to
ensure that it will have access to, and receive an adequate supply of, corn for
processing on an annual basis; and


 


WHEREAS, Member owns units in the Cooperative providing
Member the right and obligation to market a specified quantity of corn with the
Cooperative.


 


NOW, THEREFORE, in consideration of the terms, conditions
and obligations of the Cooperative and Member in this Uniform Member Agreement
and the Annual Delivery Agreement to be entered into pursuant to Section 1(b) hereof
(collectively the “Agreement”), similar obligations of other members of the
Cooperative, and in accordance with the Articles of Incorporation and Bylaws of
the Cooperative, the Cooperative and the Member agree as follows:


 


1.                                       Corn
Committed to the Cooperative.


 


(a)                                  Amount.  Each year during the term hereof, Member
agrees to sell and deliver to the Cooperative, and the Cooperative agrees to
take delivery of, one bushel of corn for each Unit of the Cooperative owned by
such Member (the “Annual Corn Commitment”); provided that the Annual Corn
Commitment may be reduced at the discretion of the Board of Directors as
provided in Sections 3 and 10 of this Uniform Member Agreement.  If Member is unable to deliver the committed
number of bushels of corn from Member’s own production due to acts of God,
other crop failure or similar cause, that circumstance shall not excuse delay
or non-delivery.  It is the intention of
the parties that Member shall be obligated to fulfill the Annual Corn
Commitment in all events, unless the obligation shall be changed, terminated or
cancelled pursuant to the express terms of this Agreement.  The Cooperative shall have no obligation to
accept more corn than the Annual Corn Commitment regardless of Member’s total
corn production.


 


(b)                                 Annual
Delivery Agreement.  Member and
the Cooperative shall enter into an Annual Delivery Agreement specifying the
method by which Member will make corn deliveries (the “Annual Delivery
Agreement”).  The Annual Delivery
Agreement shall specify the quantity, delivery and payment terms applicable to
corn deliveries made by the Member; and shall be subject to and supplement the
terms of this Uniform Member Agreement.


 


(c)                                  Consequences
of Failure to Deliver.  If
during any calendar year Member fails to fulfill the Annual Corn Commitment,
Member shall forfeit patronage 


 


1

















 


payments
to the extent of such non-delivery, and shall be subject to such other
consequences as provided herein and/or in the Bylaws of the Cooperative.


 


2.                                       Delivery
of Corn.  Member
agrees to deliver corn in accordance with the delivery procedures and delivery
schedule established from time to time by the Cooperative.  Member agrees that the risk of loss for corn
shall remain with the Member until the corn is delivered to a facility
designated by the Cooperative or its agent.


 


3.                                       Adjustment
of Quantity.  If the
total number of bushels of corn contracted for sale and delivery to the
Cooperative by all members exceeds the aggregate number of bushels that the
Cooperative determines that it needs, the Cooperative will have the right to
reduce the Annual Corn Commitment on a pro rata basis, so that the total number
of bushels contracted to the Cooperative by all members will fulfill the
Cooperative’s anticipated needs.  The
Cooperative will notify Member of any changes in the number of bushels to be
delivered by Member to the Cooperative as soon as is practicable.  The Cooperative shall not be liable to Member
for any damages resulting from a reduction in the Annual Corn Commitment
provided herein.


 


4.                                       Failure
to Deliver Corn.  If Member
fails to enter into an Annual Delivery Agreement and/or fulfill the Annual Corn
Commitment, the Cooperative shall have the right, at its option, to (a) act
as Member’s agent for the purpose of obtaining corn in the name of the Member,
and charge to Member all expenses of obtaining and delivering the corn,
including but not limited to, the price of the corn, shipping costs and all
incidental expenses; or (b) seek such other and further relief as may be
available to the Cooperative under this Agreement, the Articles of
Incorporation and Bylaws of the Cooperative, or other applicable laws.  The rights of the Cooperative under this
section shall be cumulative, and the exercise of any right shall not preclude
the Cooperative from exercising any other right or rights.


 


5.                                       Payments
to Member.  The
Cooperative agrees to pay Member as follows:


 


(a)                                  Corn
Payments.  The
purchase price for corn delivered hereunder shall be determined and paid as set
forth in the Annual Delivery Agreement.


 


(b)                                 Income
Allocations/Distributions.  In
addition to the payments for the corn, Member shall receive an allocation of
income/loss, and a possible distribution of cash to be made on a patronage
basis in accordance with the Bylaws of the Cooperative.


 


6.                                       Term
of Agreement.  The initial
term of this Agreement shall be for five (5) years commencing on January 1,
2010, and continuing through December 31, 2014 (the “Initial Term”).  At the end of the Initial Term, the Agreement
shall be automatically renewed for successive five-year term(s) (the “Renewal
Terms”) unless either party gives notice of termination as provided in Section 7
in this Agreement.


 


7.                                       Termination
of Agreement.


 


(a)                                  Termination
for Convenience.  Either
party may terminate this Agreement


 


2

















 


(i)                                     effective at the end of the
Initial Term by giving written notice to the other party prior to November 30,
2014, in which case this Agreement shall terminate effective as of December 31,
2014, or


 


(ii)                                  effective at the end of any
Renewal Term by giving written notice prior to November 30 of the final
year of the then current Renewal Term, in which case this Agreement shall
terminate effective as of December 31 of the then current Renewal Term.


 


(b)                                 Termination
for Default.  Either
party may terminate this Agreement in the event of a material breach by the
other party of any provision of this Agreement, which breach is not cured
within fifteen (15) days after the defaulting party receives written notice of
the default.


 


(c)                                  Termination
of Membership in Cooperative.  This Agreement shall automatically terminate
upon termination of Member’s membership in the Cooperative for any reason.


 


(d)                                 Termination
Upon Transfer of Units.  By
the written agreement of Member and the Cooperative as an incident to Member’s
transfer of Units in the Cooperative as provided in the Bylaws of this Cooperative.


 


(e)                                  Effect
of Termination.  Termination
of this Agreement shall not release either party from liabilities accrued prior
to such termination; provided, however, that a terminated Member shall not be
entitled to receive patronage or other distributions with respect to Units held
by Member.


 


8.                                       Compliance
with the Cooperative’s Governing Instruments.  Member accepts and agrees to conform to and
abide by the provisions of the Amended and Restated Articles of Organization
and Amended and Restated Bylaws of the Cooperative, all amendments thereto and
all other policies established from time to time by the Cooperative during the
term of this Agreement.


 


9.                                       Security
Interests.  If Member
grants a security interest in any of its corn during the term of this Agreement,
the Cooperative shall have the right, but not the obligation, after acceptance
of the corn, to pay off all or part of the obligation underlying said security
interest.  Any such payment shall be for
the account of Member and shall be charged against the amount owing to Member
by the Cooperative.  Member shall inform
the Cooperative of any security interest it has granted in such corn.


 


10.                                 Force
Majeure.  In case of
fire, explosions, interruption of power, strikes or other labor disturbances,
lack of transportation facilities, shortage of labor supplies, floods, action
of the elements, riot, interference of civil or military authorities, enactment
of legislation or any unavoidable casualty or cause beyond the control of the
Cooperative affecting the conduct of the Cooperative’s business to the extent
of preventing or unreasonably restricting the delivery receiving, handling of
corn delivered under the Annual Corn Commitment, the Cooperative shall be
excused for performance during the period that the Cooperative’s business or
operations are so affected.  The
Cooperative, in its judgment may, during such period, accept such portion of
corn as the Cooperative has informed Member it can reasonably handle.  The Cooperative shall 


 


3

















 


give
written notice to Member of the Cooperative’s inability to perform and the
specific cause or causes for the non-performance.  In any event, the Cooperative shall pay,
pursuant to the Annual Delivery Agreement, for all corn actually accepted by
the Cooperative.


 


11.                                 Complete
Agreement.  The
Cooperative and Member agree that there are no oral or other conditions,
promises, representations or inducements in addition to or in variance with any
of the terms of this Agreement, and that this Agreement together with the
Amended and Restated Articles of Organization and Amended and Restated Bylaws
of the Cooperative, constitutes the entire agreement between the parties
regarding the subject matter hereof. 
This Agreement supersedes all prior agreements between the parties with
respect to the subject matter, including the Growers Agreement between Member
and Golden Growers Cooperative, a North Dakota cooperative and predecessor to
the Cooperative.


 


12.                                 Assignment.  The Member’s rights and obligations under
this Agreement may not be assigned without the prior written consent of the
Cooperative.


 


13.                                 Waiver
of Breach.  No waiver
of a breach of any of the provisions contained in this Agreement shall be
construed to be a waiver of any subsequent breach of the same or of any other
provision of this Agreement.


 


14.                                 Construction
and Governing Law.  The
language and all parts of this Agreement shall be construed as a whole and not
strictly for or against any party.  In
the event any term, covenant or condition of this Agreement is held to be
invalid or void by a court, the invalidity of any such term, covenant or
condition shall in no way affect any other term, covenant or condition of this
Agreement.  This Agreement shall be
interpreted under Minnesota law.


 


15.                                 Successors
and Assigns.  Subject to
the other provisions of this Agreement, all of the terms, covenants and
conditions of this Agreement shall inure to the benefit of and shall bind the
parties and their successors and permitted assigns.


 


16.                                 Modification
by the Cooperative.  The
Cooperative reserves the right to modify or amend any provision of this
Agreement (including the Annual delivery Agreement); provided, that any such
amendment (i) must apply uniformly to all Uniform Member Marketing Agreements
and/or Annual Delivery Agreements between the Cooperative and its members, and (ii) must
first be approved by a majority of the members voting at a regular or special
meeting of the members of the Cooperative, where the notice of such meeting includes
a statement of the proposed modification or amendment.


 


	
  MEMBER

  	
  GOLDEN
  GROWERS COOPERATIVE

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  By

  	
   

  
	
   

  	
  Its

  	
   

  	
   

  	
   

  	
  Its

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Member
  Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Member
  Address

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Member
  #

  	
   

  	
   

  
							



 


4