Exhibit 10.1
WEST
CENTRAL COOPERATIVE CONTRIBUTION AGREEMENT
This West Central
Cooperative Contribution Agreement (“Agreement”) is
made as of this 31 st day of July, 2006, between West
Central Cooperative, an Iowa cooperative association (herein
“West Central” or the “Transferor”), having
its main office at 406 1st Street, PO Box 68, Ralston, Iowa 51459,
and Renewable Energy Group, Inc. (“Corporation”),
having its main office at 406 1st Street, PO Box 128, Ralston, Iowa
51459.
Recitals
Transferor is
engaged in the biodiesel business including (i) manufacturing,
storing, transporting, selling and/or marketing of biodiesel fuels,
lubricants and related products, (ii) designing, constructing
and/or operating biodiesel facilities for itself and third parties,
and (iii) financing, consulting or advisory services with respect
thereto (collectively the “Biodiesel Business”).
Transferor desires to join with other businesses and entities in
transferring property into the Corporation in exchange for shares
of stock in the Corporation, in a tax-free transfer qualifying
under Section 351 of the Internal Revenue Code. Corporation desires
to receive certain properties from the Transferor and from other
entities and businesses, to consolidate and expand upon their
biodiesel operations.
NOW THEREFORE, in
consideration of the covenants set forth herein, and intending to
be legally bound, the parties agree as follows:
1.
Transfer of Assets .
A.
Assets to be Transferred . Subject to the terms and
conditions of this Agreement, at the Closing, Transferor shall
irrevocably convey, assign, transfer and deliver to Corporation all
of Transferor’s interests in the following assets utilized in
Transferor’s Biodiesel Business:
(i)
Fixed Assets . All improvements, fixed assets and fixtures
described on Schedule 1(A)(i) (“Fixed Assets”);
(ii)
Equipment . All equipment described in Schedule 1(A)(ii)
(“Equipment”);
(iii)
Inventory . All inputs, raw materials, product and related
inventory described in Schedule 1(A)(iii)
(“Inventory”);
(iv)
Accounts Receivable . Accounts receivable described in
Schedule 1(A)(iv) (“Accounts Receivable”);
(v)
Contract Rights . All contract rights described in Schedule
1(A)(v) (“Contract Rights”);
(vi)
Intellectual Property . All intellectual property described
in Schedule 1(A)(vi) (“Intellectual Property”);
(vii)
Other Assets . All other assets of Transferor described in
Schedule 1(A)(vii), and utilized in Transferor’s Biodiesel
Business (“Other Assets”).
The
Fixed Assets, Equipment, Inventory, Accounts Receivable, Contract
Rights, Intellectual Property, and Other Assets shall be referred
to herein collectively as the “Assets.”
B.
Excluded Assets . All other properties of the Transferor not
included in the Assets as listed on the attached schedules are
excluded from this Agreement and will be retained by Transferor
(“Excluded Assets”). Without limiting the generality
thereof, the Excluded Assets shall specifically include the
properties listed in Schedule 1(B).
2.
Assumed Liabilities . At the Closing, the Corporation shall
assume all obligations of the Transferor after the Closing for
future performance under all Contract Rights set forth on Schedule
1(A)(v) (“Contract Obligations”), all debts and other
obligations described in Schedule 2 (“Debts”), and all
liabilities and obligations arising from the ownership of the
Assets or operation of the Biodiesel Business from and after the
Closing (“Post-Closing Liabilities”), Contract
Obligations, Debts, and Post-Closing Liabilities referred to herein
collectively as “Assumed Liabilities.” Except for
the Assumed Liabilities, the Corporation shall not assume and shall
not in any way be responsible for any liabilities or obligations of
any kind, nature or description including, without limitation, any
liabilities or obligations arising from the ownership of the Assets
or operation at the Biodiesel Business at any time prior to the
Closing, which liabilities and obligations remain the liabilities
and obligations of Transferor. The Transferor will discharge all of
its known liabilities related to its Biodiesel Business on or in
connection with the Closing, except the Assumed Liabilities.
3.
Issuance of Shares . In exchange for the Assets being
transferred to the Corporation by Transferor, Corporation agrees to
issue, execute and deliver to Transferor at Closing 6,784,667
shares of the Corporation’s common stock
(“Shares”).
4.
Closing .
A.
Time and Place . The consummation of the transactions
contemplated hereby shall take place at a closing (the
“Closing”) to be held at the offices of the Corporation
at a time to be mutually agreed upon by Corporation and Transferor
(such date, the “Closing Date”).
B.
Deliveries by the Transferor . At the Closing, and upon
satisfaction or waiver of the conditions set forth in Section 11(B)
herein, Transferor will deliver or cause to be delivered to
Corporation the instruments, consents, certificates and other
documents required by Section 11(A)(iv).
C.
Deliveries by the Corporation . At the Closing, and upon
satisfaction or waiver of the conditions set forth in Section 11(A)
herein, Corporation will deliver or cause to be delivered to
Transferor the instruments, certificates and other documents
required of it by Section 11(B)(iv).
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D.
Transfer of Possession . Possession of the Assets shall be
delivered to Corporation at Closing (“Transfer of
Possession”).
5.
Assignment of Contracts and Licenses . To the extent that
transfer or assignment hereunder by Transferor to Corporation of
any contract or license is not permitted or is not permitted
without the consent or approval of another person, this Agreement
shall not be deemed to constitute an assignment, an attempted
assignment or an undertaking to assign such contract or license if
such consent or approval is not given or if such an assignment,
attempted assignment or undertaking otherwise would constitute a
breach thereof or cause a loss of benefits thereunder. Prior to the
Closing, Transferor shall use all reasonable efforts to obtain any
and all such third party consents or approvals under all contracts
or licenses to be transferred. If any such third party consent or
approval is not obtained before the Closing, Transferor shall
cooperate with Corporation in any reasonable arrangement designed
to provide for Corporation after the Closing the benefits intended
to be assigned to Corporation under the applicable contract or
license, including enforcement at the cost and for the account of
Corporation of any and all rights of Transferor against the other
party thereto arising out of the breach or cancellation thereof by
such other party or otherwise. If and when any such consents or
approvals shall be obtained after the Closing, then Transferor
shall promptly assign its rights and obligations thereunder to
Corporation without payment of additional consideration and
Corporation shall assume such rights and obligations. Transferor
shall act as agent on behalf of Corporation with respect to any
such contracts and licenses until transfer or reissuance to
Corporation and all revenue and expense of Transferor with respect
to the business transacted pursuant to such contracts and licenses
shall be for the account of Corporation without any additional
charge by Transferor except as otherwise agreed pursuant to the
Contract for Services between West Central and Corporation to be
executed at or prior to Closing.
6.
Representations and Warranties of the Transferor .
Transferor represents and warrants to Corporation that as of the
date hereof and as of the Closing Date the following information is
true and correct:
A.
Transferor is a cooperative association duly organized, validly
existing and in good standing under the laws of the state of Iowa.
The execution, delivery and performance of this Agreement by
Transferor has been duly authorized by all necessary action on the
part of Transferor, its governing body and members, and will not
result in any violation or breach of any law, rule, regulation,
contract, agreement, instrument, order, decree or judgment to which
the Transferor is a party or by which it is bound. Except for
filing of title transfer documents as may be required and except
for such consents, approvals, and authorizations as already set out
on Schedules 2.3 and 2.14(b) to the Stock Purchase Agreement dated
the 1 st day of August, 2006, between Corporation,
Transferor, REG, LLC (f/k/a Renewable Energy Group, LLC),
InterWest, L.C. and others (the “Stock Purchase
Agreement”), no consent, approval or authorization of or
declaration or filing with any person or entity (including any
governmental authority) is required on the part of the Transferor
for or in connection with the execution, delivery and performance
of this Agreement. This Agreement constitutes a valid and binding
obligation of Transferor enforceable against the Transferor in
accordance with its terms.
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B.
All tangible property included within the Fixed Assets and
Equipment is in all material respects in good working order and
condition at the execution of this Agreement subject, however, to
the effect of ordinary wear and tear and depreciation arising from
lapse of time or use with appropriate maintenance, and will be
maintained in such condition through Closing.
C.
The Accounts Receivable included within the Assets are valid,
genuine, and subsisting, arose out of bona fide sales and
deliveries of goods or the performance of services, and to the
knowledge of Transferor are not subject to any defenses, set offs,
or counterclaims.
D.
The Inventory included within the Assets consists of items of
quality, condition and quantity saleable in the ordinary course of
the business of Transferor.
E.
Transferor has in all material respects performed all obligations
required to be performed by Transferor to date under each of the
Contract Rights referred to herein and is not in default
thereunder, or in breach thereof, nor in receipt of any claim of
default or breach thereunder, nor, to Transferor’s knowledge,
has any event occurred which, with the passage of time or the
giving of notice, or both, would cause a breach of, or a default
under, any such agreement.
F.
Intellectual Property included within the Assets constitutes all
intellectual property being used in Transferor’s Biodiesel
Business as currently conducted. No claims of third parties for
infringement with respect to Intellectual Property being
transferred are currently pending or, to the knowledge of
Transferor, are threatened.
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