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WEST CENTRAL COOPERATIVE CONTRIBUTION AGREEMENT

Contribution Agreement

WEST CENTRAL COOPERATIVE CONTRIBUTION AGREEMENT | Document Parties: Internal Revenue Code Corporation | Renewable Energy Group, Inc | West Central Cooperative You are currently viewing:
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Internal Revenue Code Corporation | Renewable Energy Group, Inc | West Central Cooperative

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Title: WEST CENTRAL COOPERATIVE CONTRIBUTION AGREEMENT
Governing Law: Iowa     Date: 7/16/2007
Law Firm: Wilcox, Polking, Gerken, Schwarzkopf & Copeland    

WEST CENTRAL COOPERATIVE CONTRIBUTION AGREEMENT, Parties: internal revenue code corporation , renewable energy group  inc , west central cooperative
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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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