Exhibit
10.8


 


NET OPERATING LOSS AGREEMENT


 


dated as of



August 16, 2005


 


by and among


 


CF INDUSTRIES HOLDINGS, INC.


 


CF INDUSTRIES, INC.


 


and


 


EXISTING STOCKHOLDERS OF CF INDUSTRIES, INC.


 





















 


Table
of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions.

  	
  1

  
	
  Section 1.2

  	
  Notices

  	
  5

  
	
  Section 1.3

  	
  Effect of
  Headings

  	
  6

  
	
  Section 1.4

  	
  Successors and
  Assigns

  	
  6

  
	
  Section 1.5

  	
  Benefits of
  Agreement

  	
  6

  
	
  Section 1.6

  	
  Governing Law

  	
  6

  
	
  Section 1.7

  	
  Legal Holidays

  	
  6

  
	
  Section 1.8

  	
  Severability
  Clause

  	
  6

  
	
  Section 1.9

  	
  Counterparts

  	
  7

  
	
  Section 1.10

  	
  Effectiveness

  	
  7

  
	
  Section 1.11

  	
  Entire Agreement

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE II NOL RIGHTS

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Payment Procedures.

  	
  7

  
	
  Section 2.2

  	
  Payments to Members.

  	
  9

  
	
  Section 2.3

  	
  Member-Sourced NOL.

  	
  9

  
	
  Section 2.4

  	
  Repayment of
  Amounts

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE III MEMBERS

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Certain Duties
  and Responsibilities.

  	
  10

  
	
  Section 3.2

  	
  Certain Rights of
  the Responsible Member; Actions of the Responsible Member

  	
  12

  
	
  Section 3.3

  	
  Reimbursement and
  Indemnification of the Responsible Member.

  	
  12

  
	
  Section 3.4

  	
  Resignation and
  Removal; Appointment of Successor.

  	
  13

  
	
  Section 3.5

  	
  Acceptance of
  Appointment by Successor

  	
  13

  
	
  Section 3.6

  	
  Final Resolution

  	
  14

  
	
  Section 3.7

  	
  Opt Out

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV COVENANTS

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Prosecution of
  Litigation by the Company; Settlement; Periodic Reports; Expenses.

  	
  15

  
	
  Section 4.2

  	
  Payment of NOL
  Payment Amount and Operations of the Company

  	
  16

  
	
  Section 4.3

  	
  Federal Income
  Tax Treatment

  	
  16

  
	
  Section 4.4

  	
  Transferability

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE V AMENDMENTS

  	
  17

  



 





















 


	
  Section 5.1

  	
  Amendments.

  	
  17

  
	
  Section 5.2

  	
  Execution of
  Amendments

  	
  17

  
	
  Section 5.3

  	
  Effect of
  Amendments

  	
  17

  



 


ii





















 


NET
OPERATING LOSS AGREEMENT


 


This NET OPERATING LOSS AGREEMENT, dated as of
August 16, 2005 (this “Agreement”), is entered into by and among CF
Industries Holdings, Inc., a Delaware corporation (the “Parent”),
CF Industries, Inc., a Delaware corporation (the “Company”) and the
existing stockholders of the Company before the IPO (as defined below) (each a
“Member”, collectively “Members”).


 


RECITALS:


 


WHEREAS, the Company and the Parent have entered
into an agreement and plan of merger dated as of July 21, 2005, pursuant
to which a wholly-owned subsidiary of Parent will be merged with and into the Company,
with the Company surviving as a wholly-owned subsidiary of Parent (the “Merger”);


 


WHEREAS, in connection with the Merger, Parent will
undertake an initial public offering (the “IPO”) of Parent’s common
stock, pursuant to which Parent will become a public company; and


 


WHEREAS, the parties hereto intend that, following
the Merger, the Members may be entitled to receive certain contingent payments
from Parent in the amount and manner hereinafter described.


 


NOW, THEREFORE, for and in consideration of the
premises and the consummation of the transactions referred to above, it is
mutually covenanted and agreed as follows:


 


ARTICLE I


 


DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION


 


Section 1.1             Definitions.


 


(a)           For
all purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:


 


(i)            the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;


 


(ii)           all
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles, and the term “generally accepted accounting principles” means such
accounting principles as are generally accepted in the United States at the
time of any computation;


 





















 


(iii)          the
words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision; and


 


(iv)          unless
the context otherwise requires, words describing the singular number shall
include the plural and vice versa, words denoting any gender shall include all
genders and words denoting natural Persons shall include corporations,
partnerships and other Persons and vice versa.


 


(b)           Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Merger Agreement.  The
following additional terms shall have the meanings ascribed to them as follows:


 


“Affiliate” of a Person means a Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the first mentioned Person.


 


“Board of Directors” means the board of
directors of the Parent or the Company, as applicable.


 


“Business Day” means any day other than a
Saturday, Sunday or a day on which banking institutions in Chicago, Illinois
are authorized or obligated by law or executive order to remain closed.


 


“Code” means the Internal Revenue Code of
1986, as amended.


 


“Consolidated Group” means any group of
corporations that includes the Company (or any successor to the Company) and
files any United States federal, state or local income tax return on a
combined, consolidated, unitary or affiliated basis.


 


“Determination” means (i) with respect
to the utilization of a Member-Sourced NOL for United States federal income tax
purposes, “Determination” shall mean (A) a decision by the tax court or a
judgment, decree, or other order by any court of competent jurisdiction, which
has become final; (B) a closing agreement made under Section 7121 of
the Code; (C) a final disposition by the Secretary of a claim for refund
or (D) other decisions as described under Section 1313 of the Code
and the regulations thereunder, and (ii) with respect to the utilization
of a Member-Sourced NOL for purposes of any state or local income tax, the
receipt of an Opinion of Counsel that such Member-Sourced NOL can be utilized
to offset taxable income in such state or local jurisdiction.


 


“Excess Payment” has the meaning specified in
Section 2.4


 


“Expenses” means the sum of all direct
expenses incurred after the Merger by any of the Members, the Parent, the
Company, the Company Subsidiaries or any of their respective Affiliates in
order to carry the Member-Sourced NOLs forward to tax years (or portions
thereof) beginning after the Merger, including any fees, expenses or costs
incurred after the Merger (including, without limitation, the cost of the time
of employees of the Parent, the Company, any Company Subsidiary or any of their
Affiliates) in connection with (i) pursuing the Ruling or any


 


2





















 


other Litigation or any Determination,
(ii) any tax audit or refund claim to the extent related to the utilization
of Member-Sourced NOLs or (iii) defending any audit, litigation or other
proceeding with respect to the amount and/or existence of the Member-Sourced
NOLs.


 


“Firm Expenses” has the meaning specified in
Section 2.1(d) of this Agreement.


 


“IPO” has the meaning set forth in the
recitals to this Agreement.


 


“Last NOL Payment Date” shall mean the date
determined by the Parent as the date on which the last NOL Payment Amount is to
be made under this Agreement (or the date on which it is determined by a
Majority that no payment of NOL Payment Amount shall be made pursuant to this
Agreement).


 


“Litigation” means pursuing the Ruling or any
litigation that the Parent, the Company or the Company Subsidiaries or any of
their Affiliates may file or assert and any similar future lawsuits, claims or
appeals brought by the Parent, the Company, the Company Subsidiaries or their
Affiliates related to the ability of the Company to utilize Member-Sourced NOL
carryforwards to offset any taxable income of the Company or any Consolidated
Group in any tax year (or portion thereof) beginning after the Merger.


 


“Majority” means the Members who held a
majority of the shares of preferred stock of the Company outstanding
immediately prior to the Merger; provided, however, that in the event that one
or more Members has Opted Out of this Agreement in accordance with
Section 3.7 as of the time of the determination of a Majority, only the
shares of preferred stock owned immediately before the Merger by Members that
have not Opted Out of this Agreement shall be considered to have been
outstanding at such time.


 


“Member-Sourced NOLs” means the net operating
losses (within the meaning of section 172 of the Code or any similar
provision of applicable state or local income tax law) generated by the Company
from business with its members prior to the Merger during the taxable years
when the Company was taxed as a cooperative under subchapter T of the Code and
the regulations thereunder.


 


“NOL Payment Amount” means, for any NOL
Payment Date, the sum of the excess, if any, of (i) the aggregate amount
of United States federal, state and local net income tax liability of the
Company or any Consolidated Group for any tax year (or portion thereof)
beginning after the Merger, calculated without taking into account the
utilization of any Member-Sourced NOLs carried forward from tax years ending on
or before the date of the Merger (the “Without Calculation”), over
(ii) the aggregate amount of United States federal, state and local net
income tax liability of the Company or any Consolidated Group for such tax year
(or portion thereof) beginning after the Merger, calculated on the basis of
utilizing any Member-Sourced NOLs that are available under applicable law
(including, without limitation, the limitations imposed by Sections 382 and 384
of the Code) (the “With Calculation”); provided however, that any tax
attributes of the Company or any Consolidated Group other than Member-Sourced
NOLs (“Other Attributes”) that are treated as utilized to reduce actual current
tax liability under the Without Calculation in any tax year shall be deemed to
be unavailable to the Company or Consolidated Group in making the Without
Calculation in any future year, regardless of whether


 


3





















 


such Other Attributes were actually utilized
by the Company or Consolidated Group to reduce tax liability in the prior
year.  “NOL Payment Amount” shall also
include any interest actually received by the Company or a Consolidated Group
with respect to taxes offset by Member-Sourced NOLs.


 


“NOL Payment Date” means any date that any
NOL Payment Amount is paid by the Parent to the Members.


 


“Officer’s Certificate” means a certificate
signed by the President, Chief Financial Officer or General Counsel, in each
case of the Parent or the Company, in his or her capacity as such an officer,
and delivered to the Members.


 


“Opinion of Counsel” means a written opinion
of nationally recognized counsel, which shall be selected by a Majority, and
which opinion and counsel shall be reasonably acceptable to the Company.


 


“Opt-Out” has the meaning specified in
Section 3.7(a).


 


“Opt-Out Notice” has the meaning specified in
Section 3.7(a).


 


“Person” means any individual, corporation,
partnership, joint venture, limited liability company, business trust,
association, joint-stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.


 


“Resolution” has the meaning specified in
Section 2.1(d) of this Agreement. 



 


“Ruling” means a private letter ruling issued
by the United States Internal Revenue Service (the “IRS”)  to the effect that the Member-Sourced NOLs of
the Company can be used to offset the income of the Company (or any
Consolidated Group) for federal income tax purposes after the Merger during tax
years when the Company is not taxed as a cooperative under subchapter T of the
Code.


 


“Settlement Decision” means any decision to
grant consent to the settlement of any aspect or portion of the Litigation or otherwise
to dismiss with prejudice any claim of the Parent, the Company or a Company
Subsidiary in a Litigation (and any other determination specified in
Section 3.1(d) relating to such a decision).


 


“Strategic Decision” means, with respect to
the Litigation, any decision that involves the appeal of any aspect of the case
(whether after a verdict or on a interlocutory basis), the addition of any
claim or party, changing legal counsel or the basis for payment of attorney’s
fees, any admission of liability with respect to any claim against the Company
in the Litigation, or any other proposed decision or determination that in the
opinion of outside counsel representing the Parent, the Company and the Company
Subsidiaries in the Litigation would represent a material change or development
in strategy with respect to the Litigation and result in a substantial
likelihood that the recovery or receipt by the Company and Company Subsidiaries
of any amount of Litigation Proceeds (whether pursuant to a court order at trial
or upon appeal or pursuant to the terms of any settlement agreement) will be
delayed; provided, however, a
Strategic Decision shall not include any action that constitutes (in whole or
in part) a Settlement Decision.


 


4





















 


“Subsidiary” when used with respect to any
Person means any corporation or other organization, whether incorporated or
unincorporated, of which such Person directly or indirectly owns or controls at
least a majority of the securities or other interests having by their terms
ordinary voting power to elect a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization, or any organization of which such Person is a general partner.


 


“Transfer” has the meaning specified in
Section 4.4.


 


“Transferee” has the meaning specified in
Section 4.4.


 


“Transferring Member” has the meaning
specified in Section 4.4.


 


Section 1.2             Notices.  Any request, demand,
authorization, direction, notice, consent, or other document provided or
permitted by this Agreement to be made upon, given or furnished to, or filed
with:


 


(a)           The
Company shall be sufficient for every purpose hereunder if in writing and
delivered personally, telecopied or mailed first-class postage prepaid or sent
by a nationally recognized overnight courier to the Company addressed to the
attention of the General Counsel or Chief Financial Officer at One Salem Lake
Drive, Long Grove, IL 60047, fax: (847) 438-0211, phone: (847) 438-9500 or at
any other address previously furnished in writing to the other parties hereto,
with a copy to Brian Duwe, Esq., Skadden, Arps, Slate, Meagher &
Flom LLP, 333 W. Wacker Drive, Suite 2100, Chicago, IL 60606.


 


(b)           CHS
Inc. shall be sufficient for every purpose hereunder if in writing and
delivered personally, telecopied or mailed first-class postage prepaid or sent
by a nationally recognized overnight courier to it addressed to 5500 Cenex
Drive, Inver Grove Heights, Minnesota 55077-1733 or any other address
previously furnished in writing to the parties hereto.


 


(c)           La
Coop fédérée shall be sufficient for every purpose hereunder if in writing and
delivered personally, telecopied or mailed first-class postage prepaid or sent
by a nationally recognized overnight courier to it addressed to 9001 Boulevard
de l’Acadie, Bureau 200, Montreal, Quebec, H4N 3H7 CANADA or any other address
previously furnished in writing to the parties hereto.


 


(d)           GROWMARK, Inc.
shall be sufficient for every purpose hereunder if in writing and delivered
personally, telecopied or mailed first-class postage prepaid or sent by a
nationally recognized overnight courier to it addressed to 1701 Towanda Avenue,
Bloomington, Illinois 61701-9972 or any other address previously furnished in writing
to the parties hereto.


 


(e)           Intermountain
Farmers Association shall be sufficient for every purpose hereunder if in
writing and delivered personally, telecopied or mailed first-class postage
prepaid or sent by a nationally recognized overnight courier to it addressed to
1147 West 2100 South, Salt Lake City, Utah 84119-0168 or any other address
previously furnished in writing to the parties hereto.


 


5





















 


(f)            Land
O’Lakes, Inc. shall be sufficient for every purpose hereunder if in
writing and delivered personally, telecopied or mailed first-class postage
prepaid or sent by a nationally recognized overnight courier to it addressed to
4001 Lexington Avenue North, Arden Hills, Minnesota 55126-2998 or any other address
previously furnished in writing to the parties hereto.


 


(g)           MFA
Incorporated shall be sufficient for every purpose hereunder if in writing and
delivered personally, telecopied or mailed first-class postage prepaid or sent
by a nationally recognized overnight courier to it addressed to 201 Ray Young
Drive, Columbia, Missouri 65201-3599 or any other address previously furnished
in writing to the parties hereto.


 


(h)           Southern
States Cooperative, Incorporated shall be sufficient for every purpose hereunder
if in writing and delivered personally, telecopied or mailed first-class
postage prepaid or sent by a nationally recognized overnight courier to it
addressed to 6606 West Broad Street, Richmond, Virginia 23230-1717 or any other
address previously furnished in writing to the parties hereto.


 


(i)            Tennessee
Farmers Cooperative shall be sufficient for every purpose hereunder if in
writing and delivered personally, telecopied or mailed first-class postage
prepaid or sent by a nationally recognized overnight courier to it addressed to
180 Old Nashville Hwy, LaVergne, Tennessee 37086-1983 or any other address
previously furnished in writing to the parties hereto.


 


Section 1.3             Effect of Headings.  The
Article and Section headings herein are for convenience only and
shall not affect the construction hereof.


 


Section 1.4             Successors and Assigns.  All
covenants and agreements in this Agreement by the Company shall bind its
successors and assigns, whether so expressed or not.


 


Section 1.5             Benefits of Agreement. 
Subject to Section 5.6, nothing in this Agreement, express or
implied, shall give to any Person (other than the parties hereto) any benefit
or any legal or equitable right, remedy or claim under this Agreement or under
any covenant or provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto.


 


Section 1.6             Governing Law.  This
Agreement shall be governed by and construed in accordance with the laws of the
state of Delaware applicable to contracts executed and performed wholly within
such state without giving effect to the choice of law principles of such state.


 


Section 1.7             Legal Holidays.  In
the event that an NOL Payment Date shall not be a Business Day, then
(notwithstanding any provision of this Agreement to the contrary) any payment
required to be made in respect of the use of Member-Sourced NOLs pursuant to
this Agreement on such date need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the applicable NOL Payment Date.


 


Section 1.8             Severability Clause.  In
case any one or more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any


 


6





















 


respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein.  Upon such determination that any term or other
provision is invalid, illegal or unenforceable, the court or other tribunal
making such determination is authorized and instructed to modify this Agreement
so as to effect the original intent of the parties as closely as possible so
that the transactions and agreements contemplated herein are consummated as
originally contemplated to the fullest extent possible.


 


Section 1.9             Counterparts.  This
Agreement may be signed in any number of counterparts, each of which shall be
deemed to constitute but one and the same instrument.


 


Section 1.10           Effectiveness.  This
Agreement shall be effective from and after the consummation of the
Merger.  This Agreement shall be deemed
terminated and of no force or effect, and the parties hereto shall have no
liability hereunder, if the IPO is terminated prior to the Effective Time.


 


Section 1.11           Entire Agreement.  This
Agreement, the Merger Agreement and the agreements referenced herein and
therein represent the entire understanding of the parties hereto with reference
to the matters contemplated hereby and such documents supersede any and all
prior oral or written agreements regarding such matters.


 


ARTICLE II


 


NOL RIGHTS


 


Section 2.1             Payment Procedures.


 


(a)           As
promptly as practicable but in no event later than 45 days after the Company or
any Consolidated Group or any of their Affiliates realize any actual cash tax
saving as a result of the utilization of any Member-Sourced NOL carryforward in
any tax year (or portion thereof) beginning after the Merger, the Parent shall
deliver to the Members a certificate (the “NOL Certificate”) setting
forth, in each case, in reasonable detail (i) the amount of any
Member-Sourced NOL carried forward by the Company and used by the Company or
any Consolidated Group, if any, (ii) a detailed description of tax savings
enjoyed by the Company or a Consolidated Group, if any, as a result of
utilization of Member-Sourced NOL, (iii) an itemized list of the Expenses
incurred to date, (iv) an itemized list of the Expenses as of the NOL
Payment Date (and not previously included in the computation of the NOL Payment
Amount) that the Company has incurred (whether directly or reimbursed),
(v) the calculation of the NOL Payment Amount, if any, through the date of
the NOL Certificate, (vi) any assumptions (as appropriate or requested)
underlying the determination of any item used in making the necessary
calculations for such calculations, and (vii) any financial or other
documentation (if requested) reasonably necessary to sufficiently support such
calculations.  For purposes of this
Agreement, neither the Company nor any Consolidated Group shall be considered
to have realized any actual cash tax savings from the utilization of a
Member-Sourced NOL prior to (A) the earlier of (i) the receipt of the
Ruling or (ii) a Determination that such Member-Sourced NOLs can be
utilized to offset taxable income of the Company or a Consolidated Group in any
tax year (or portion thereof) beginning after the Merger, and (B) with
respect to any tax year for which a federal or state


 


7





















 


income tax return of the Company or Consolidated
Group is due after the receipt of such Ruling or Determination, the earlier of
(i) the due date (taking into account applicable extensions) for such
return or (ii) the date such return is actually filed.


 


(b)           Within
30 days of delivery of the NOL Certificate, each Member shall give written
notice to the Company specifying whether such member agrees or objects (a “Notice
of Agreement” and a “Notice of Objection”, respectively) to the NOL
Certificate and the computation of the NOL Payment Amount.


 


(c)           If
each Member delivers a Notice of Agreement and any NOL Payment Amount is
payable, the Company shall pay such amounts to the Members in accordance with
Section 2.2(a).


 


(d)           As
promptly as practicable following delivery of a Notice of Objection, the
applicable Member shall deliver to the Parent and each other Member a
certificate (an “Objection Certificate”) setting forth in reasonable
detail each of the objections to the calculations, valuations, methodologies,
lists, computations, assumptions and other information (collectively, the “Valuations”)
that the Member has to the applicable NOL Certificate.  If a Majority does not agree with the
Objection Certificate (or any objections within such Objection Certificate),
then the NOL Payment Amount shall be as set forth in the NOL Certificate and
the Parent shall pay such amounts in accordance with Section 2.2(a).  If within ten days of the delivery of the
Objection Certificate, a Majority agrees, in whole or in part, with the
Objection Certificate, the Parent and the Members shall attempt in good faith
to resolve all disagreements regarding the Valuations.  If, after 20 days, Parent and the Members are
unable to resolve any such disagreement, Parent and the Members shall subject
the remaining areas of disagreement regarding the NOL Certificate that are in
dispute to Ernst & Young or any other mutually agreed upon independent
public accounting firm of national standing that shall have expertise in the
valuation of assets and properties (the “Firm”).  The Firm shall be instructed to determine
whether the Valuations set forth in the NOL Certificate that are in dispute are
correct in all material respects.  If the
Firm determines that such Valuations are correct, the NOL Payment Amount shall
be as set forth in the NOL Certificate, and each Member shall be deemed to have
delivered a Notice of Agreement with respect to such NOL Certificate and the
Company shall pay such amounts in accordance with Section 2.2(a).  If the Firm determines that any of the
Valuations set forth in the NOL Certificate are incorrect in any respect
(whether or not material), the Firm’s resulting calculation of the NOL Payment
Amount shall be binding on all parties hereto (the “Resolution”) and the
Parent, upon notice of such Resolution, shall pay such amounts in accordance
with Section 2.2(a).  All costs and
expenses billed by the Firm in connection with the performance of its duties
described herein (“Firm Expenses”) shall be paid by the Members that
agreed with the Objection Certificate giving rise to such costs, in proportion
to such Members’ respective ownership of shares of preferred stock of the
Company immediately prior to the Merger:


 


(e)           If
a Member does not deliver a Notice of Agreement or a Notice of Objection to an
NOL Certificate within the 30-day period described above, the Member shall be
deemed to have delivered a Notice of Agreement with respect to such NOL
Certificate.


 


8





















 


(f)            Notwithstanding
the foregoing, the provisions of this Section 2.1 (other than
Section 2.1(f) and the definition of NOL Certificate) shall not apply
to any NOL Certificate received as a result of a Settlement Decision.


 


Section 2.2             Payments to Members.


 


(a)           If
any NOL Payment Amount is determined to be payable in accordance with
Section 2.1 or Section 3.1(e), the Parent shall pay such amount to
the Members in proportion to the number of shares of preferred stock of the
Company owned by such Members immediately prior to the Merger (as set forth on
Schedule A hereto, as may be amended pursuant to Section 3.7 from
time to time) within five (5) Business Days after such determination is
final, accompanied by an Officer’s Certificate stating that the amount paid is
the NOL Payment Amount as determined in accordance with Section 2.1 or
Section 3.1(e), as the case may be.


 


(b)           In
the event that the Company or any Consolidated Group has utilized the
Member-Sourced NOLs in more than one taxable year, then the NOL Payment Amount
with respect to any such resulting tax savings shall be paid with respect to
each such actual use and the procedures described in Section 2.1 and
Section 3.1(e) shall apply to each such actual use of Member-Sourced
NOLs.


 


(c)           The
determination by the Company of any NOL Payment Amount pursuant to the
procedures set forth in Section 2.1, absent a mathematical error, shall be
final and binding on the Company and the Members.


 


(d)           Except
in the specific cases specified in this Agreement, no interest shall accrue on
any amounts payable to the Members.


 


Section 2.3             Member-Sourced NOL.


 


Within 45 days after filing the federal and state
income tax return of the Company for the tax year ending on the Merger date
(and any amended federal income tax return for such year), the Company shall
deliver to each Member a notice of the amount of Member-Sourced NOL
carryforwards reported on such return. 
The Company’s determination of such amount shall be final and binding
upon the Parent, the Company and the Members in the absence of manifest error
and except to the extent that the amount of Member-Sourced NOL is adjusted
through any amended return, tax audit, tax litigation or similar proceeding.


 


Section 2.4             Repayment of Amounts. 
Notwithstanding any other provision of this Agreement, in the event
that, after any amount is paid to the Members in respect of tax savings as a
result of the utilization of Member-Sourced NOL pursuant to this Agreement, the
Company reasonably determines that any such payment was erroneous or exceeded
the amount of tax savings actually realized from the utilization of
Member-Sourced NOL (such as, for example, as a result of an audit or other tax
proceeding pursuant to which it is determined that the Member-Sourced NOLs were
smaller than believed or were subject to limitations on use that were not taken
into account when such payments were made) (“Excess Payments”), each Member
that received an Excess Payment shall repay to the Company the amount of such
Excess Payment, together with interest on such Excess Payment at the
underpayment rate applicable to the Company under Section 6601 of the Code
for the period during which the Member held such


 


9





















 


Excess Payment.  Any such repayment shall be made within 30
days after the Company delivers to the affected Members a notice setting forth
in reasonable detail the calculation of the amount of the Excess Payment (and
interest thereon).  Alternatively, in the
Company’s sole and absolute discretion, the Company shall have the right to
offset any Excess Payments owed by a Member to the Company against any amounts
owed by the Company, the Parent or any of their Subsidiaries to such
Member.  The purpose of this
Section 2.4 is to ensure that payments to the Members by the Company
pursuant to this Agreement shall be made only in respect of tax savings that
are actually realized by the Company through utilizing Member-Sourced NOL after
the Merger, and this Section 2.4 shall be interpreted consistent with such
purpose.


 


ARTICLE III


 


MEMBERS


 


Section 3.1             Certain Duties and Responsibilities.


 


(a)           The
Members undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.


 


(b)           The
Members shall bear, in proportion to the number of shares of preferred stock of
the Company owned by such Members immediately prior to the Merger as set forth
on Schedule A (as may be amended from time to time pursuant to Section 3.7),
all of the costs incurred after the Merger in connection with or associated
with the Litigation, including, but not limited to, the Expenses. To the extent
possible, all Expenses shall be incurred and paid directly by the Members (or
the Responsible Member on behalf of the Members). To the extent that Expenses
are incurred by the Parent, the Company or any of their respective
Subsidiaries, (including, without limitation, Expenses constituting
reimbursement for the time of any employee of the Parent, the Company or any of
their respective Subsidiaries) the Parent or the Company shall be reimbursed
promptly for such Expenses by the Members. The Parent or the Company shall bill
each Member for its share of Expenses to be reimbursed by such Member pursuant
to the previous sentence whenever the Parent or the Company determines that the
aggregate amount of unbilled unreimbursed Expenses due from all Members exceeds
$50,000, but in no event less than annually (it being understood that a failure
to timely bill a Member for any unreimbursed Expense shall not in any way
prejudice the Parent’s or the Company’s right to be reimbursed for such
Expense).


 


(c)           The
Members shall have the sole power and duty to direct and supervise all matters
involving the Litigation (including trial strategy and planning and settlement
strategy) on behalf of the Company and any Consolidated Group; provided that all decisions and
determinations with respect to the Litigation (including, without limitation,
any Settlement Decision or Strategic Decision) shall be made in accordance with
this Section 3.1(c).  The Members
shall elect by Majority vote a Member (the “Responsible Member”), who
shall have primary responsibility for the day-to-day direction and supervision
of the Litigation and may, without the approval of any of the Parent, the
Company, the Company Subsidiaries, any of their respective Affiliates, or any
of the other Members, make decisions and determinations in accordance with
Section 3.1(d) hereof with respect to the day-to-day conduct of the
Litigation and such decisions shall be deemed to made on behalf of all of the
Members.  Notwithstanding


 


10





















 


the foregoing, the approval of a Majority shall
be required for any Strategic Decision or any Settlement Decision.


 


(d)           In
making any decision or determination with respect to the Litigation (including,
without limitation, any Settlement Decision or Strategic Decision) the
Responsible Member shall act in good faith with a view to maximizing the
present value of the Litigation to the Members. 
Without limiting the generality of the foregoing, in connection with any
Settlement Decision, the Responsible Member shall consider:


 


(i)            the
aggregate amount of Member-Sourced NOLs to be carried forward;


 


(ii)           the
benefit to the Company and any Consolidated Group of any actual tax savings as
a result of such Member-Sourced NOLs carryforward;


 


(iii)          the
discounted present value of any prospective tax-savings.


 


The
discount rate applicable to the value of such prospective tax saving shall be
determined by the applicable Majority and shall give due regard to the
financial and other costs to the Company and the Company Subsidiaries of other
resolution of the Litigation.


 


(e)           In
connection with the approval of any Settlement Decision, the Parent and a
Majority shall jointly determine the amount, or a methodology for determining
the amount, of any Member-Sourced NOLs resulting from the settlement and the
resulting tax saving.  As promptly as
practicable (but in no event later than 30 days after the settlement), the
Parent shall deliver to the Members an NOL Certificate setting forth the
matters described in Section 2.1(a) to date.  Upon receipt of any actual tax savings
resulting from the Member-Sourced NOL carryover, the Parent shall compute the
NOL Payment Amount in a manner consistent with the NOL Certificate and shall
pay the NOL Payment Amount to the Members in accordance with
Section 2.2(a) (accompanied by the Officer Certificate’s setting
forth the NOL Payment Amount). The Parent’s management will make a good faith
effort to comply with the Responsible Member’s request to allow employees of
the Parent to participate in the Litigation activities.


 


(f)            The
Responsible Member shall confer in person or by telephone as frequently as
necessary to keep all Members informed about material developments in the
Litigation, on at least three days’ prior notice.  Such briefings by the Responsible Member
shall include a description of the progress of the Litigation and summarize any
material decisions or determinations that were made without seeking the
approval of the other Members.


 


(g)           The
Responsible Member shall establish procedures for making decisions in an
expedited manner in the case of exigent or emergency circumstances arising in
connection with the Litigation.


 


(h)           The
Responsible Member shall be deemed to be the agent of the Parent and the
Company for all purposes relating to evidentiary privileges, including
attorney-client privileges.


 


11





















 


Section 3.2             Certain Rights of the Responsible Member;
Actions of the Responsible Member.  The Responsible Member
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Responsible Member.  In addition:


 


(a)           the
Responsible Member may rely upon and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;


 


(b)           whenever
the Responsible Member shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Responsible Member may, in the absence of bad faith or willful misconduct on
its part, rely upon an Officer’s Certificate;


 


(c)           the
Responsible Member may engage and consult with counsel of its selection and the
written advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by them
hereunder in good faith and in reliance thereon;


 


(d)           the
Responsible Member may engage and consult with accounting firms, tax experts,
valuation firms and other experts and third parties that it, in its sole and
absolute discretion, deem appropriate or necessary to enable them to discharge
their duties hereunder; and


 


(e)           the
Responsible Member may request employees of the Parent, the Company, the
Company Subsidiaries, and their Affiliates to respond to discovery requests,
attend and prepare for depositions, prepare for and testify at trial, or take
any other action that the Responsible Members believes is necessary or prudent
in prosecuting the Litigation.


 


Except
as otherwise expressly provided in this Agreement, all decisions of the Members
shall be taken by Majority vote of the Members; provided, however, that the right to engage parties
(including employees of the Parent, the Company, the Company Subsidiaries, or
their Affiliates) to perform services with respect to the day-to-day conduct of
the Litigation shall be made by the Responsible Member.


 


Section 3.3             Reimbursement and Indemnification of the
Responsible Member.


 


(a)           The
Members agree:


 


(i)            except
as otherwise expressly provided herein, to pay to or on behalf of the
Responsible Member, upon the request of the Responsible Member, all reasonable
expenses and disbursements incurred or to be incurred by the Responsible Member
in connection with the discharge of their duties under this Agreement
(including, without limitation, the reasonable compensation and the expenses
and disbursements of their counsel, tax experts, valuation firms and other
experts and third parties as contemplated in Section 3.2); and


 


12





















 


(ii)           to
indemnify the Responsible Member and hold him or her harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses and reasonable disbursements of
any kind or nature whatsoever (including, without limitation, the reasonable
compensation and the expenses and disbursements of their counsel, tax experts,
valuation firms and other experts and third parties as contemplated in
Section 3.2) that may be imposed on, asserted against or incurred by them
under this Agreement, and the Responsible Member shall be so indemnified under
this Agreement for his own ordinary or gross negligence, but the Responsible
Member does not have the right to be indemnified under this Agreement for their
own willful misconduct or bad faith.


 


(b)           All
reimbursements and indemnification payments made by the Members to the
Responsible Member pursuant to this Section 3.3 shall be made by the
Members in proportion to the number of shares of preferred stock of the Company
owned by such Members immediately prior to the Merger, as set forth on
Schedule A (as may be amended from time to time pursuant to
Section 3.7).


 


Section 3.4             Resignation and Removal; Appointment of
Successor.


 


(a)           The
Responsible Member may resign at any time by giving written notice thereof to
the Parent and other Members.


 


(b)           A
Majority may remove the Responsible Member at any time by giving written notice
thereof to the Parent and the Responsible Member.


 


(c)           If
the Responsible Member shall resign, be removed or become incapable of acting,
his or her successor shall be appointed by a Majority of the remaining Members.


 


(d)           The
Parent shall give notice of each resignation and each removal of the
Responsible Member and each appointment of a successor Responsible Member to
the other Members.  Each notice shall
include the name and address of the successor Responsible Member.  If the Parent fails to send such notice
within ten days after acceptance of appointment by a successor Responsible
Member, the successor Responsible Member shall cause the notice to be mailed at
the expense of the Parent.


 


Section 3.5             Acceptance of Appointment by Successor. 
Every successor Responsible Member appointed hereunder shall execute,
acknowledge and deliver to the Parent and to the retiring Responsible Member an
instrument accepting such appointment and a counterpart of this Agreement, and
thereupon such successor Responsible Member, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Responsible Member.


 


13





















 


Section 3.6             Final Resolution.  On
the Last NOL Payment Date, this Agreement shall terminate; provided, however,
that the provisions of Section 3.3 shall survive the termination of the
Agreement.


 


Section 3.7             Opt Out


 


(a)           A
Member may opt out of the provisions of this Agreement (an “Opt Out”) upon
written notice to the Company and each of other Members (an “Opt Out
Notice”).  A Member’s Opt Out shall be
effective on the date specified by the Member in the Opt Out Notice, which
shall not be earlier than fifteen days after the delivery of the Opt Out
Notice.  Once given, an Opt Out Notice
may be revoked only with the consent of the Company and all of the Members that
have not Opted Out of this Agreement.


 


(b)           If
a Member Opts Out of this Agreement, from and after the effective date of such
Member’s Opt Out:  (i) such Member
shall not be responsible for any Expenses or Firm Expenses incurred on or after
the effective date of the Opt Out (but shall remain liable for its portion of
any Expenses or Firm Expenses incurred prior to such effective date);
(ii) such Member shall not be entitled to receive any payments pursuant to
this Agreement in respect of any tax savings realized by the Company or any
Consolidated Group as a result of the utilization of any Member-Sourced NOL in
any taxable year that ends on or after the effective date of such Member’s Opt
Out Notice (and shall be entitled to receive any payments pursuant to this
Agreement in respect of any actual cash tax savings realized by the Company or
any Consolidated Group as a result of the utilization of any Member-Sourced NOL
in any taxable year that ends prior to the effective date of such Member’s Opt
Out Notice);  and (iii) Schedule A
shall be amended, as of the effective date of each Opt Out Notice, to remove
the Member that has Opted Out, such that (A) any Expenses and Firm
Expenses incurred on or after the effective date of such Opt Out Notice shall
be borne by the Members that did not Opt Out in proportion to the number of
shares of preferred stock of the Company owned by such Members immediately
prior to the Merger, treating any shares of preferred stock owned immediately
before the Merger by a Member that has Opted Out as not being outstanding
immediately prior to the Merger for this purpose and (B) any payments
pursuant to this Agreement in respect of any cash tax savings actually realized
by the Company or any Consolidated Group as a result of the utilization of any
Member-Sourced NOL in any taxable year that ends on or after the effective date
of each Opt Out Notice shall be paid to the Members that did not Opt Out in
proportion to the number of shares of preferred stock of the Company owned by
such Members immediately prior to the Merger. 
Nothing in this Section 3.7 shall relieve any Member that Opts Out
of this Agreement of any of its obligations under Section 2.4  to repay to the Company any Excess Payments
it may have received, without regard to whether the determination that an
Excess Payment was made to such Member occurs before or after such Member has
Opted Out of this Agreement.


 


(c)           For
the avoidance of doubt, in the event that all of the Members Opt Out of this
Agreement, from and after the effective date of the Opt Out Notice of the last
Member to Opt Out, (i) the Company shall control and make all decisions
regarding the prosecution of the Litigation (including, without limitation,
whether to abandon the Litigation) in its sole and absolute discretion,
(ii) the Company shall bear all Expenses incurred after the effective date
of such last Opt Out if the Company chooses to pursue the Litigation, and
(iii) the Company shall be entitled to retain any tax savings realized by
the Company or any Consolidated Group as a


 


14





















 


result of the utilization of any Member-Sourced
NOL in any taxable period ending after the effective date of the Opt Out Notice
of the last Member to Opt Out.


 


ARTICLE IV


 


COVENANTS


 


Section 4.1             Prosecution of Litigation by the Company;
Settlement; Periodic Reports; Expenses.


 


(a)           In
each case as directed by the Members pursuant to
Section 3.1(c) hereof, the Company shall cause to prosecute in good
faith the Litigation and/or seek a settlement of the Litigation.


 


(b)           None
of the Parent, the Company, any Company Subsidiary, or their Affiliates shall
make any Settlement Decision without obtaining prior approval from the
applicable Majority as determined in accordance with the last sentence of
Section 3.1(c).


 


(c)           Until
the Litigation has been settled or is final and not subject to further judicial
review (by appeal or otherwise), each of the Parent, the Company, the Company
Subsidiaries, their Affiliates and the Members shall cooperate in order to
ensure that (i) all of the Members receive, by the last Business Day of
each fiscal quarter of the Company, a report describing the status of the
Litigation, which report shall describe, in summary fashion, the total Expenses
incurred through the date of such report, the status of all pending IRS or
court proceedings related to the Litigation, and the status of any settlement
negotiations among the Parent, the Company, the Company Subsidiaries and their
Affiliates and the defendants with respect to the Litigation and
(ii) except as otherwise required by applicable law or court order, all of
the Members are granted access to any and all records, documents, personnel and
any other sources of information that are in the possession, custody or control
of the Parent, the Company and their Affiliates as the Members shall determine
are reasonably necessary or desirable in order to review Settlement Decisions
and Strategic Decisions, if any.  The
Parent, the Company, the Company Subsidiaries, and their Affiliates shall
cooperate with the Members in providing the assistance of any of their officers
and employees and, to the extent that the Parent or the Company, as the case
may be, believes in its reasonable determination that it is required to have
its employees expend efforts in prosecuting the Litigation, the Parent or the
Company shall be entitled to be reimbursed for any reasonable amount of hours
expended in such effort.


 


(d)           None
of the Parent, the Company, or the Company Subsidiaries shall initiate
settlement negotiations or expand settlement negotiations with respect to any
aspect or portion of the Litigation without the prior permission of a Majority
as set forth in the last sentence of Section 3.1(c) and the Parent
and the Company agree that such powers shall vest with the Members as provided
in Section 3.1(c).  No Member shall
initiate settlement negotiations without first informing each other Member of
such settlement negotiations and obtaining consent to pursue such negotiations
from a Majority of Members as determined in the last sentence of
Section 3.1(c).  If one or more
Members are allowed to entertain or initiate settlement negotiations, such
Members shall keep each other Member reasonably informed


 


15





















 


regarding the status of such negotiations
(including any expansion of such negotiations) and any Members shall, if such
Members request, be allowed to participate in the settlement negotiations.


 


Section 4.2             Payment of NOL Payment Amount and Operations
of the Company.  The Parent or the Company shall duly and promptly
pay all amounts due in accordance with the terms of this Agreement; provided,
however, that none of the Parent, the Company or any Company Subsidiary shall
be obligated to arrange its affairs in such a manner as to increase the
likelihood that the Member-Sourced NOLs will be utilized by the Company or any
Consolidated Group after the Merger (other than in pursuing the Ruling and any
other Litigation in good faith, as contemplated herein).


 


Section 4.3             Federal Income Tax Treatment.  The
Parent or the Company shall not (and shall cause each of their Affiliates not
to) treat any NOL Payment Amount as payments of interest or compensation
(except as required under the Code and regulations promulgated thereunder) and
the Parent and the Company shall not (and shall not allow any of their
Affiliates to) take any position inconsistent with such treatment (unless
required by a determination that is final after the Parent, the Company or
their Affiliates have defended such matter in good faith).


 


Section 4.4             Transferability.  No
Member shall sell, exchange, transfer or otherwise dispose of any part of its
interest in this Agreement (a “Transfer”) to any other person (a “Transferee”)
unless: a) such Member (the “Transferring Member”) provides the Company and
each other Member with at least 15 days written notice of any proposed Transfer
(which notice shall include a description of the material terms of the proposed
Transfer and shall identify the proposed Transferee); b) such proposed Transfer
and Transferee are approved by a vote of a Majority; c) the proposed Transfer
includes a Transfer of the entire interest of the Transferring Member in this
Agreement, and d) the Transferee delivers a certificate to the Company and the
other Members acknowledging and agreeing to be bound by the terms of this
Agreement.  Solely for purposes of this
Section 4.4, whether a vote constitutes a Majority shall be determined as
if the shares of preferred stock of the Company held by the Transferring Member
were not outstanding immediately prior to the Merger.  Any attempted Transfer by a Member of any
interest in this Agreement that does not comply with the provisions of this
Section 4.4 shall be void and shall be given no effect.  From and after the completion of a Transfer
that does comply with the provisions of this Section 4.4, the Transferee
shall become a substitute Member and the Transferring Member shall no longer be
treated as a Member for purposes of this Agreement; provided, however,  that the Transfer of an interest in this
Agreement in accordance with this Section 4.4 shall not relieve the
Transferring Member of any of its obligations under this Agreement (including,
without limitation, its obligation to pay its share of the Expenses and Firm
Expenses) that accrued prior to the effectiveness of such Transfer to the
extent that such obligations are not fulfilled by the Transferee.


 


16





















 


ARTICLE V


 


AMENDMENTS


 


Section 5.1             Amendments.


 


(a)           This
Agreement may not be amended except by an instrument in writing signed by the
Parent, the Company and the Majority.


 


Section 5.2             Execution of Amendments.  In
executing any amendment permitted by this Article, the Members shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement.  The Members
may, but are not obligated to, enter into any such amendment that affects the
Members’ own rights, privileges, covenants or duties under this Agreement or
otherwise.


 


Section 5.3             Effect of Amendments.  Upon
the execution of any amendment under this Article, this Agreement shall be
modified in accordance therewith, such amendment shall form a part of this
Agreement for all purposes and every Person hereto shall be bound thereby.


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]


 


17





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized officers to
be effective as of the day and year first above written.


 


 


	
   

  	
   

  	
  CF INDUSTRIES HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Stephen R. Wilson

  	
   

  
	
   

  	
   

  	
  Name: Stephen R. Wilson

  
	
   

  	
   

  	
  Title:  President and Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CF INDUSTRIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
     /s/ Stephen R. Wilson

  	
   

  
	
   

  	
   

  	
  Name: Stephen R. Wilson

  
	
   

  	
   

  	
  Title:  President and Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MEMBERS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CHS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
      /s/ John D. Johnson

  	
   

  
	
   

  	
   

  	
  Name: John D. Johnson

  
	
   

  	
   

  	
  Title:  President and Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LA COOP FÉDÉRÉE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Ernest Desrosiers

  	
   

  
	
   

  	
   

  	
  Name: Ernest Desrosiers

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GROWMARK, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
     /s/ William Davission

  	
   

  
	
   

  	
   

  	
  Name: William Davisson

  
	
   

  	
   

  	
  Title: CEO

  



 





















 


	
   

  	
   

  	
  INTERMOUNTAIN FARMERS ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Spencer P. Lloyd

  	
   

  
	
   

  	
   

  	
  Name: Spencer P. Lloyd

  
	
   

  	
   

  	
  Title: Senior VP and CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LAND O’LAKES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ John E. Gherty

  	
   

  
	
   

  	
   

  	
  Name: John E. Gherty

  
	
   

  	
   

  	
  Title: President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MFA INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Don Copenhaver

  	
   

  
	
   

  	
   

  	
  Name: Don Copenhaver

  
	
   

  	
   

  	
  Title: President and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SOUTHERN STATES COOPERATIVE,

  INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Thomas R. Scribner

  	
   

  
	
   

  	
   

  	
  Name: Thomas R. Scribner

  
	
   

  	
   

  	
  Title: President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENNESSEE FARMERS COOPERATIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
     /s/ Vernon L. Glover

  	
   

  
	
   

  	
   

  	
  Name: Vernon L. Glover

  
	
   

  	
   

  	
  Title: CEO

  



 





















 


Schedule A


Ownership of Preferred Stock of CF Industries
Prior


to the Merger


 


	
   

  	
   

  	
  Preferred

  Shares

  	
   

  
	
  Land O’Lakes

  	
   

  	
  2,792,791

  	
   

  
	
  Southern
  States Cooperative

  	
   

  	
  409,820

  	
   

  
	
  MFA

  	
   

  	
  349,784

  	
   

  
	
  Tennessee
  Farmers Cooperative

  	
   

  	
  303,415

  	
   

  
	
  La Coop
  fédéree

  	
   

  	
  133,029

  	
   

  
	
  Intermountain
  Farmers Association

  	
   

  	
  17,817

  	
   

  
	
  CHS

  	
   

  	
  1,529,945

  	
   

  
	
  Growmark

  	
   

  	
  1,806,417

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  7,343,018