Exhibit 10.1





 


 


 


 


 


 




Exhibit 10.1


UNIT REDEMPTION
AGREEMENT


 


            This Unit Redemption
Agreement (this “Agreement”) is made and entered into as of June 2, 2010 (the
“Effective Date”), by and between NATIONAL BEEF PACKING COMPANY, LLC, a
Delaware limited liability company (the “Company”), and TKK INVESTMENTS, LLC, a
Missouri limited liability company (“TKK”), and TMKCo, LLC, a Missouri limited
liability company (“TMK”).


 


            WHEREAS, TKK and TMK
(collectively, the “Klein Entities”) desire that the Company redeem certain
Class B Units representing membership interests in the Company.


 


            WHEREAS, the Company
has agreed to redeem from the Klein Entities, and the Klein Entities each agree
to sell to the Company, such number of Class B Units as set forth on Exhibit
A (the “Class B Units”), on the terms and conditions set forth in this
Agreement (the “Redemption”).


 


            NOW, THEREFORE, the
parties, intending to be legally bound hereby, agree as follows:


 



1.         Redemption of Units.  The Company hereby agrees to redeem and
accept from each of the Klein Entities, and each of the Klein Entities hereby
agrees to sell, assign and transfer to the Company, all right, title and
interest in and to the Class B Units.  After the Redemption of the Class B
Units under this Agreement, the ownership of units of membership interests in
the Company shall be as provided on the amended Exhibit 3.1 attached as Exhibit
B.


 



2.         Redemption Price.  As full consideration for the Redemption of
the Class B Units, the Company shall pay to TKK and TMK the amounts set forth
opposite the Member’s name on Exhibit A (the “Redemption Price”) for the
corresponding number of Class B Units set forth on Exhibit A.


 



3.         Closing.  The closing of the Redemption will take place on or
before June 3, 2010 or such other date as the parties may agree (the “Closing
Date”).


 



4.         Amendment of Limited Liability Company Agreement.  Upon closing
of the Redemption, the National Beef Packing Company, LLC Limited Liability
Company Agreement dated August 6, 2003, as subsequently amended from time to
time (the “LLC Agreement”), shall be amended by deleting the Fourth Amended
Exhibit 3.1 thereto in its entirety and inserting in lieu thereof the Fifth
Amended Exhibit 3.1 attached hereto as Exhibit B. 


 



5.         Representations and Warranties of the Members.  Each of the Klein
Entities hereby represents and warrants to the Company as of the Effective Date
and the Closing Date that:


 


(a) 
The Class B Units to be redeemed hereunder are owned both of record and
beneficially by the applicable Klein Entity, free and clear of any lien, claim,
security interest or encumbrance whatsoever.


 


(b) 
The Klein Entity has the full power and legal right and authority to execute,
deliver and perform this Agreement.


 










 






 


 


 


 


 


(c) 
This Agreement constitutes a valid and legally binding obligation of the Klein
Entity, enforceable in accordance with its terms.


 


(d) 
The Redemption will vest in the Company good, marketable, legal and equitable
title in and to the Class B Units.


 


(e) 
After the Redemption applicable Klein Entity will have the continuing right to
receive the allocation of profits and losses and corresponding distributions
related to the redeemed Class B Units calculated through the end of the
calendar quarter in which the Redemption occurs and prorated on a daily basis
through the Closing Date, which shall include distributions for tax purposes.


 


            These representations
and warranties of each of the Klein Entities will survive the Redemption.


 


6.         Waiver
and Release. Upon payment in full of the Redemption Price, each of the
Klein Entities hereby waives and forever releases any and all rights such Klein
Entity may have under the LLC Agreement to obtain an appraisal or other
valuation of the Class B Units redeemed pursuant to this Agreement, including
the appraisal and sale rights pursuant to Sections 12.5.1 through 12.5.9 of the
LLC Agreement. 


 


7.         Severability. 
To the extent that any provision of this Agreement is determined to be invalid
or unenforceable, the invalid or unenforceable portion of the provision will be
deleted from this Agreement, and the validity and enforceability of the
remainder of the provision and of this Agreement will be unaffected.


 


8.         Headings
and Captions.  The headings and captions in the sections, paragraphs and
clauses of this Agreement are inserted for convenience of reference only and do
not constitute a part of this Agreement. 


 


9.         Benefit
and Burden, No Assignment.  This Agreement shall inure to the benefit of,
and shall be binding upon, the parties and their successors’ interest and shall
not be assigned to any other person or entity.


 


10.       Miscellaneous. 
No change, modification or waiver of any provision of this Agreement shall be
valid unless the same is in writing and signed by the parties.  This Agreement
sets forth all agreements and representations of the parties with respect to
the subject matter of this Agreement, and any and all prior agreements with
respect to such subject matter are hereby revoked in favor of this Agreement. 
This Agreement shall be construed and enforced in accordance with the laws of
the State of Delaware, without regard to choice of law provisions.


 


11.       Counterparts. 
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original and all of which will constitute one and the same
document.


 


[Signature Page Follows]


 


 *   *   *   *   *


                                                                                                


 










 






 


 


 


 


            IN WITNESS WHEREOF,
the parties have executed this Unit Redemption Agreement as of the date first
above written.


 



		

National Beef Packing Company,
LLC


			
	

 


			
	

By:  /s/
Steven D. Hunt___________        


			
	

Print Name:  Steven D. Hunt


			
	

Title: 
Chairman of the Board


			
	

 


			
	

TKK
Investments, LLC


			
	

 


			
	

By:  /s/
Timothy M. Klein________


			
	

Print Name:  Timothy M. Klein


			
	

Title: 
President


			
	

 

	
			 

	

TMKCo, LLC


			
	

 


			
	

By:  /s/
Timothy M. Klein________


			
	

Print Name:  Timothy M. Klein


			
	

Title: 
President


			
	

 


			







 


 


Agreed To By:


 


	
  U.S. Premium Beef, LLC

   

  By: /s/ Steven D. Hunt                        

  Print Name: Steven D. Hunt

  Title: Chief Executive Officer

   

   

   

   

   

   

  	
  NBPCO HOLDINGS, LLC

   

  
	By:   /s/ Eldon Roth____________________

  Print Name:  Eldon Roth

  Title:  President

  



 


 


                                                                                                


 










 











 


 


 


 


Exhibit A


 


Members, Redeemed
Class B Units and Redemption Price


 


 




	
  Member

  	
  Redeemed Class B Units

  	
  Redemption Price

  
	
  TKK Investments, LLC

  	
  82,315.5

  	
  $4,000,000

  
	
  TMKCo, LLC

  	
  82,315.5

  	
    4,000,000

  






 


 










 











Exhibit B


 


Fifth Amended
Exhibit 3.1 to LLC Agreement


 


Exhibit
3.1


 


	
  Member

  	
  Class A Units

  	
  Contribution

  	
  Total Class
	

	A %

  	
  Class B-1 Units

  	
  Contribution

  	
  Total Class
	

	B-1 %

  
	
  USPB

  	
    94,680,681

  	
  $94,680,681.00

  	
  46.4143%

  	
    10,664,475

  	
  $10,664,475.00

  	
  69.3340%

  
	
   

  	
    55,841,342 
	(1)

  	
  $55,841,342.00

  	
  27.3745%

  	
   

  	
   

  	
   

  
	
  NBPCo

  	
    31,553,956

  	
  $31,553,956.00

  	
  15.4684%

  	
     
	3,810,044

  	
  $ 3,810,044.00

  	
  24.7706%

  
	
   

  	
    19,642,729 
	(1)

  	
  $19,642,729.00

  	
  9.6293%

  	
   

  	
   

  	
   

  
	
  TKK

  	
   

  	
   

  	
   

  	
      
	760,542 (2)

  	
  $760,542

  	
  4.9446%

  
	
  TMK

  	
     
	2,271,428

  	
  $ 2,271,428.00

  	
  1.1135%

  	
       
	146,256 (2)

  	
  $146,256

  	
  0.9509%

  
	
  Total

  	
  
	203,990,136
	
  
	$203,990,136.00
	
  
	100%
	
  
	15,381,317
	
  
	$15,381,317
	
  
	100%




 


 


(1)  The 55,841,342
new Class A Units held by USPB and 19,642,729 new Class A Units held by NBPCo
(referred to as “Class A1 Units”) have additional Class A rights and
preferences consisting of: (a) the Members agree that the Priority Return under
the Company’s limited liability company agreement under Section 5.7.2(b) shall
be seven percent (7%) per annum for Class A1 Units rather than five percent
(5%) per annum; and (b) for purposes of determining Class B-1 ownership for
liquidation or the redemption of Units, the Class A1 Units shall be deemed converted
to Class B-1 Units at a ratio of one (1) Class B-1 Unit for 29.8214 Class A1
Units and then shall remain Class A1 Units after the determination.  Subject to
lending covenants, the Board of Managers may redeem capital, including Class A1
Units after making tax distributions.  Without any redemption of Class A1
Units, the determination of Class B-1 ownership and rights for purposes of a
redemption or liquidation event would be as follows:


 


	
  Members

  	
  New Class 

	B-1 Units

  	
  Total Class 

	B-1
  Units

  	
  Total Class 

	B-1 %

  
	
  TKK

  	
   

  	
  760,542

  	
  4.2459%

  
	
  TMK

  	
   

  	
  146,256

  	
  0.8165%

  
	
  Total Klein

  	
   

  	
  906,798

  	
  5.0624%

  
	
   

  	
   

  	
   

  	
   

  
	
  USPB

  	
  1,872,526.0612

  	
  12,537,001.0612

  	
  69.9901%

  
	
  NBPCo

  	
  658,679.0518

  	
  4,468,723.0518

  	
  24.9475%

  



 


                                                                                                


 










 






 


 


 


 


(2)  For purposes of
redemption or liquidation of the 760,542 Class B-1 Units held by TKK
Investments, LLC and the 146,256 Class B-1 Units held by TMKCo, LLC, as part of
the consideration paid to TKK Investments, LLC or TMKCo, LLC there shall be
paid by the Company a premium (“Non-Dilution Premium”).  The Non-Dilution
Premium shall be determined by agreement of the Company and TMKCo, LLC and TKK
Investments, LLC, which shall provide with the current Class B-1 Unit
ownership, the Non-Dilution Premium will not exceed $4,323,902 and would be up
to $4.76832 per Class B-1 Unit that TMKCo, LLC and TKK Investments, LLC hold
after the redemption of Class B Units contemplated by this Agreement.


 


This Schedule 3.1 is hereby
agreed to as the statement of the Members ownership interests in the Company
which shall amend the Company’s Limited Liability Company Agreement (“LLC
Agreement”) to the extent rights, restrictions and preferences of the ownership
interests are provided in this Schedule 3.1.  In cases where the provisions of
this Schedule 3.1 conflict with the LLC Agreement, the provisions of this
Schedule 3.1 shall control.


 


This Schedule 3.1 may be executed
in counterparts with the effect of the counterparts being considered as one
executed document.


 


 


	
  National Beef Packing Company, LLC

   

                                                                          

  By Steven D. Hunt,

  Its Chair

   

   

  TKK Investments, LLC

   

                                                                          

  By                                                                   

      Its                                                                

   

   

  TMKCo, LLC

   

                                                                          

  By                                                                    

       Its                                                               

   

  	
  U.S. Premium Beef, LLC

   

                                                                          

  By Steven D. Hunt

  Its CEO

   

   

  NBPCO HOLDINGS, LLC

   

                                                                          

  By                                                                    

       Its