EXHIBIT 10.15
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BHN JOINT VENTURE AGREEMENT
AMENDED AND RESTATED
AS OF JANUARY 1, 1981
WHEREAS, ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, INC., NAPLES TOMATO GROWERS, INC., and
BEEFSTAKE TOMATO GROWERS, INC. ("Venturers"), all being corporations
organized and existing under the laws of the State of Florida, entered
into a JOINT VENTURE AGREEMENT effective the first day of November 1979
operating under the name of BHN, and
WHEREAS, ARTICLE XIX of said JOINT VENTURE AGREEMENT had expressly
reserved the right to amend said AGREEMENT if made in writing and
signed by all the Venturers, and
WHEREAS, it is now the desire of the Venturers to increase the
number of Venturers involved in the discovery and development of new
plant varieties, and
WHEREAS, the present Venturers are willing to admit ▇. ▇▇▇▇ &
SONS, INC., and RICHFIELD PACKING CORPORATION, INC., into the Venture
in return for a capital contribution as provided herein,
NOW, THEREFORE, the JOINT VENTURE AGREEMENT dated the twenty-
seventh day of October 1980, which was effective the first day of
November 1979, is hereby amended and restated in its entirety effective
January 1, 1981, and the Amended and Restated Agreement shall read as
follows:
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JOINT VENTURE AGREEMENT
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JOINT VENTURE AGREEMENT, by and between ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, INC., a
corporation organized and existing under the laws of the State of
Florida and having its principal office at ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
(▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇), ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter specifically
referred to as "▇▇▇▇▇▇▇"), and NAPLES TOMATO GROWERS, INC., a Florida
corporation having its principal office at Route 2, Box ▇▇▇▇, ▇▇▇ ▇.▇.
▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter specifically referred to
as "NAPLES"), and BEEFSTAKE TOMATO GROWERS, INC., a Florida corporation
having its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter specifically referred to as "BEEFSTAKE"),
and ▇. ▇▇▇▇ & SONS, INC., a Florida corporation having its principal
office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
specifically referred to as "▇▇▇▇"), and RICHFIELD PACKING CORPORATION,
INC., a Florida corporation having its principal office at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter specifically referred to
as "RICHFIELD"). The parties hereto may be hereinafter sometimes
referred to individually as the "Venturer" and collectively as the
"Venturers."
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R E C I T A L S
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WHEREAS, the Venturers operate certain businesses connected with
agriculture including, but not limited to, packing and distribution of
tomatoes; and
WHEREAS, the Venturers have a joint interest in the development of
improved plant varieties and believe that it would be prudent to join
together in a joint venture to fund a research facility to discover and
develop new plant varieties which can be used in connection with their
individual business operations and to employ at said facility a person
or persons having the educational background and experience necessary
to conduct such research; and
WHEREAS, the risk of the Venture and the anticipated cost of a
magnitude that no one Venturer would be willing to undertake the
project alone, but collectively, the Venturers believe the potential
would justify the risks involved, and the Venturers desire, therefore,
to conduct the project in joint venture form for the purposes
hereinabove and hereinafter provided.
NOW, THEREFORE, in consideration of the premises which shall be
deemed to be an integral part of this agreement and not as mere
recitals hereto, and of the mutual agreements herein contained, it is
agreed by and between the parties hereto as follows:
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ARTICLE I
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The Venturers hereby constitute themselves Joint Venturers for the
purpose of funding and operating a research facility for purposes of
discovering and developing new plant varieties having a commercial
application to existing or future business operations of the Venturers
and to do all things incident thereto including, but not limited to,
the employment of persons having the ability to conduct such research.
ARTICLE II
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A. Name. The Venture shall operate under the name BHN, a
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Joint Venture, or such other name as the Venturers shall determine.
B. Office Address. The office and principal place of business
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of the Venture shall be at ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or
such other place or places as shall mutually be agreed upon by the
Venturers.
ARTICLE III
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The Venture shall commence on the first day of November 1979 and
shall continue until the thirty-first day of October 1989, or until
dissolved, if dissolution shall occur prior to the aforesaid
termination date by the terms of this agreement, by desire of a
majority in interest of the Venturers, or by operation of law;
provided, however, that dissolution of the Venture shall not terminate
this agreement prior to completion of the liquidation of the Venture.
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ARTICLE IV
Defined Terms
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The defined terms used in this agreement shall, unless the context
otherwise requires, have the meanings specified in this Article IV.
A. "Agreement" means this Joint Venture Agreement as amended and
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restated and as hereafter amended from time to time unless the context
otherwise requires.
B. "Capital Account" as to any Venturer means such Venturer's
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capital account as provided in Paragraph C of Article V hereof.
C. "Capital Contribution" means the total amount of money or
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property contributed to the Venture as provided in Article V by the
Venturers or any Venturer, as the context requires.
D. "Cash Flow" shall mean gross receipts determined on a cash
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basis from Venture operations less cash disbursements for Venture
purposes including, by way of example and not by way of limitation:
(1) All expenses of the Venture including operating
expenses of the Venture;
(2) Debt payments;
(3) Capital costs of equipment, improvements,
replacements and other tangibles and intangibles; and
(4) Prepaid items.
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Depreciation and other noncash amortizations or charges, if
any, shall not be a charge in determining cash flow.
E. "Code" means the United States Internal Revenue Code of 1954
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as heretofore or hereafter amended (or any corresponding provision of
succeeding law).
F. "Consent" means the written consent of a Venturer to do the
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act or thing for which the consent is solicited, or the act of granting
such consent, as the context may require.
G. "Development Plan" shall mean the development plan and
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program setting forth research priorities plus the detailed overall
budget and cash flow estimate that is adopted by the Venturers at an
annual meeting or a special meeting or by written consent, as the case
may be.
H. "Dissolution", when used with respect to a Venturer, assignee
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or other successor or person or entity having an interest in the
Venture, shall mean an actual substantive dissolution.
I. "Distributable Cash Flow" shall mean cash flow adjusted
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for amounts which are from time to time set aside for restoration or
creation of reserves or which are from time to time withdrawn from such
reserves.
J. "Fiscal Year" means, with respect to the Venture, December 31
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or such other fiscal year as the Venturers may properly and lawfully
agree upon from time to time.
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K. "Gross Receipts" shall mean the total Venture revenues
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received during an accounting period or any other given period from all
sources, including, by way of example and not by way of limitation, the
proceeds of a sale of seeds or plants developed.
L. "Incapacity" or "Incapacitated" means the insolvency,
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adjudication of bankruptcy, as the case may be, of any Venturer.
M. "Interest" and "Venture Interest" means the entire ownership
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interest (which may, either for its capital account or its interest in
profits, losses, distributable cash flow, etc., be expressed as a
percentage) of a Venturer in the Venture at any particular time,
including the rights and obligations of such Venturer under this
Agreement.
N. "Majority" or "Majority of the Venturers" or "Majority in
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Interest" means a majority in interest of the Venturers and not a
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majority in number of the Venturers.
O. "Notification" means a writing containing the information
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required by this agreement or desired by any Venturer to be
communicated to any person, sent by registered or certified mail,
return receipt requested, postage prepaid, to such person at the
address for such person specified in Exhibit "B" attached hereto and by
this reference made a part hereof, the same as if fully set forth
herein or, if applicable, at such address for such person specified in
the most recent notification by or on behalf of such person changing
the address of such.
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P. "Operating Expenses" shall mean all costs of operating
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Venture properties including, by way of example and not by way of
limitation, the costs and expenses of repairs to equipment, fixtures
and facilities constituting a part of such properties or related to or
used on such properties, the costs and expenses of staffing the
research facility and the costs and expenses of administration and
operation of the Venture and the Venture properties; provided, however,
that operating expenses shall include only those expenditures provided
in any approved budget adopted by the Venture or otherwise approved by
a majority in interest of the Venturers.
Q. "Venturer" means ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, INC.; NAPLES TOMATO
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GROWERS, INC.; BEEFSTAKE TOMATO GROWERS, INC.; A ▇▇▇▇ & SONS, INC.; and
RICHFIELD PACKING CORPORATION, INC.; or any successor in that capacity
permitted hereunder.
R. "Property" and "Venture Property" shall mean the real and
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personal property initially leased by or transferred to the Venture and
all property subsequently leased or acquired by the Venture.
S. "Venture" means the Venture formed hereby as said Venture may
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from time to time be constituted.
T. "Venture Account" means the bank account or bank accounts to
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be maintained by the Venturers on behalf of the Venture with any bank.
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U. "Person" means any individual, partnership, corporation,
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trust or other entity.
V. "Profits" and "Losses" means the net ordinary income
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(profits) or net ordinary loss (losses) of the Venture as determined on
a cash basis for U.S. federal income tax purposes determined as of the
[illegible text].
▇. ▇▇▇▇ & SONS, INC. -0-
RICHFIELD PACKERS CORPORATION, INC. 10,000.00
B. Additional Contributions. It is recognized and agreed by and
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between the Venturers that additional contributions to the capital of
the Venture (in amounts and at times not at present known) will be
necessary to carry out the purposes of the Venture and to carry on the
business of the Venture and that such additional contributions shall be
made by the Venturers in the same ratios as their participation in the
profits of the Venture as set forth in Exhibit "A" hereto. The decision
as to whether additional contributions to the capital of the Venture
shall be made is considered to be a management decision and as such
shall be determined as provided in ARTICLE X, paragraph A, of this
Agreement.
C. Remedies for Failure of Venturer to Make Additional
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Contributions. When additional contributions are necessary to carry out
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the purposes of the Venture or to carry on the business
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of the Venture and any Venturer fails to make its full share of such
additional contributions within thirty (30) days after the required or
agreed date thereof, then the other Venturers may make such
contribution (hereinafter called the "Contributing Venturers") in which
event the proportionate Venture interest of the Venturer failing to
make such additional contribution (hereinafter called the "Delinquent
Venturer") shall be decreased by twice the percentage equal to the
percentage which such additional contribution to the Venture bears to
the total contributed capital of the Venture including the subject
additional capital contribution, and the Venture interest of the
contributing Venturers will be increased by a like amount. The
Delinquent Venturer shall, however, have ninety (90) days from the date
of the payment by the Contributing Venturer or Venturers in which to
cure (as hereinafter provided) the failure to make its full share of
such additional contribution, and upon cure, the Venture interests of
the respective Venturers prior to the above contemplated delinquency
adjustment shall be reinstated. Said cure shall only be accomplished by
payment by the Delinquent Venturer to the Contributing Venturer or
Venturers of an amount equal to fifteen percent (15%) of the Delinquent
Venturer's required share. In the event that Delinquent Venturer's
contribution is not made by any other Venturer but other Venturers have
contributed their shares of the additional contribution, then in that
event, upon expiration of one hundred twenty (120) days
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after the required or agreed date for contributions to be made, the
respective interests of the Venturers shall be adjusted to reflect
additional capital contributions made. In all instances Exhibit "A"
shall be amended to reflect the change in Venture interests of the
Venturers.
D. Capital Accounts. An individual capital account shall be
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maintained for each Venturer. The capital account of each Venturer
shall initially consist of the amount or value of the sum of its
contributions to the capital of the Venture as set forth in Exhibit "A"
hereto and in addition to the adjustments contemplated by Article V-C
hereof, shall be (a) increased (i) by the amount or value of its
additional contributions to the capital of the Venture and (ii) by the
amount of its share of any profits or other income as set forth in
Exhibit "A" hereto; and (b) decreased by (i) its share of any
distributions of any Venture cash or assets (assets to be valued at
their fair market value at the date of distribution) and (ii) by its
share of any losses as set forth in Exhibit "A" hereto. The capital
accounts of the Venturers shall be maintained at all times in the
ratios in which they share in the profits or losses of the Venture as
set forth in Exhibit "A" hereto or as said Exhibit "A" may be amended
from time to time as provided in this Agreement.
E. Tax Basis Record. An individual tax basis record for U.S.
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Federal income tax purposes shall be maintained for each Venturer. The
tax basis record of each Venturer shall be
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established and shall be adjusted as of the close of each taxable year
of the Venture (or when appropriate, as of the close of the taxable
year of the Venture for such Venturer) in accordance with Federal
income tax law and procedure as the same may exist from time to time.
F. Interest on and Repayment of Capital Accounts. No interest
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shall be payable on the capital accounts of the Venturers. Repayment of
all or any part of the capital accounts of the Venturers shall be only
in accordance with the provisions of this Agreement or in accordance
with the agreement of a majority of the Venturers to the extent allowed
by law; provided, however, that any and all such repayments shall be
made (a) with respect to each Venturer's capital account and (b) in
equal percentages with respect to each Venturer's capital account.
ARTICLE VI
Distributions
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A. Cash Flow Accounts and Distributions. An individual cash flow
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account shall be maintained for each Venturer. The cash flow shall be
computed at the end of each quarter during each fiscal year of the
partnership, and after the allocation, if any, to such reserves as the
Venturers may from time to time establish by approval of the majority
of the Venturers, each Venturer's distributive share (measured by its
proportion for sharing in the profits of the Venture as set forth in
Exhibit "A" hereto or as said Exhibit "A" may be amended from time to
time as provided in
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this Agreement) of such distributable cash flow shall then be credited
to its cash flow account. Distributions (withdrawals) from such cash
flow accounts shall be permitted by agreement of a majority of the
Venturers, provided, however, that any and all such distributions
(withdrawals) shall be permitted (a) with respect to each Venturer's
cash flow account and (b) in percentages with respect to each
Venturer's cash flow account.
B. Interest on Cash Flow Accounts. No interest shall be payable
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on the cash flow accounts of the Venturers.
C. Distributions to Pay Income Taxes. The Venturers agree that
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to the extent that the Venture has available cash funds, distributions
shall be made to the parties to the Venture in the actual net amount of
any United States Federal or state income taxes which the parties to
the Venture may be required to pay on account of their share of any
taxable income of the Venture as reported on income tax returns of the
Venture.
ARTICLE VII
Profits and Losses
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A. Participation of Venturers in Profits and Losses. The
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Venturers shall participate in the profits and losses of the Venture as
set forth in Exhibit "A" in this Agreement or as said Exhibit "A" may
be amended from time to time as provided in this Agreement.
B. Participation of Venturers in Gains, Costs, Expenses, Credits
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and Deductible Items. All items of gain or income not
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included in determining Venture profits or losses shall be allocated to
the Venturers in the same manner and proportions as profits are
allocated as set forth in Exhibit "A" hereto or as said Exhibit "A" may
be amended from time to time as provided in this Agreement. All items
of capital loss, depreciation, investment tax credits and other such
items of deduction or credit that are separately allocated among the
Venturers or not included in determining Venture profits or losses
shall be allocated to the Venturers in the same manner and proportions
as losses are allocated as set forth in Exhibit "A" hereto or as said
Exhibit "A" may be amended from time to time as provided in this
Agreement. Notwithstanding anything else herein contained, any amounts
of any credits, depreciation or other deductible items recaptured shall
be allocated to the Venturers who claimed such credits, depreciation or
other deductible items (or to their successors or assigns) to the
extent thereof.
ARTICLE VIII
Rights, Powers and Duties of Agent and Parties to the Venture
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A. Responsibilities of Agent. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is hereby
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appointed agent for the Venture and shall be responsible for:
(1) The management and operations of the affairs, activities
and business of the Venture in accordance with the development plan
adopted by the Venture.
(2) The development of an estimated operating statement of
profit and loss for each six-month period of the existence of
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the Venture in accordance with the development plan adopted by the
Venture and estimated costs and income for same.
(3) Semi-annual progress and other similar reports by
notification to the notice address of each Venturer not later than
fifteen (15) days following the end of each six-month period which
reveal the status of the Venture.
(4) Hiring of all personnel, preparation of project policies
and budgets (including periodic review and amendments thereto)
direction and coordination of experts and other personnel needed to
carry out the purposes of the Venture, obtaining all government
approvals and permits in connection with discovery and development of
plant varieties in accordance with the development plan adopted by the
Venture, financing requirements and establishing and maintaining a
system of books and records.
(5) Monitoring the Venture activities continuously,
vigilantly and diligently and reporting immediately to each Venturer or
their designees any problems, delays, defaults, mistakes, impediments
or special opportunities with respect to the Venture project or any
part or phase thereof with respect to any specific deal or proposal in
connection with the Venture project or any part or phase thereof.
Subject to the provisions of this entire Agreement, Venturers hereby
delegate to Agent such authority as is reasonably required to
accomplish the above-mentioned activities.
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B. A majority of the Venturers shall have the right and power by
express notice to the other Venturers and BHN's agent to terminate
effective upon receipt of such notice any and all of the actions of
said agent and to direct the accomplishment of any such terminated
task(s) by those persons and/or entities selected by majority of the
Venturers.
C. Power of Agent to Commit the Venturer or Venturers to
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Obligations.
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(1) The Agent shall not, without the consent of a majority
of the Venturers, obligate the Venture to expenditures, obligations,
responsibilities or similar items of expense in excess of a total
annual aggregate amount of $50,000.00 or in excess of $50,000.00 for
any single such item of expense or to contract for a term in excess of
one year.
(2) Any expenditure, obligation, responsibility or similar
item in excess of $50,000.00 shall require the consent by a majority of
the Venturers prior to the incurrence by the Venture of such
expenditure, obligation, responsibility or similar item. For this
purpose, approval of the semi-annual budget for the Venture shall be
deemed to satisfy the requirements of this subparagraph C(2) to the
extent of the items of expenditure and obligation contained therein and
the dollar limitations or other limitations thereon as provided in said
semi-annual budget as approved.
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D. Operating Costs of Project. No party to the Venture shall be
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entitled to a separate fee for carrying out any responsibilities
assigned to such party under this Agreement.
ARTICLE IX
Representations of the Parties to the Venture
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▇. ▇▇▇▇▇▇▇ represents and warrants:
(1) That ▇▇▇▇▇▇▇ has and shall have the full right and
authority to enter into this Agreement and to carry out all rights and
obligations of ▇▇▇▇▇▇▇ expressed, implied and contemplated in this
Agreement.
B. NAPLES represents and warrants:
(1) That NAPLES has and shall have the full right and
authority to enter into this Agreement and to carry out all rights and
obligations of NAPLES expressed, implied and contemplated in this
Agreement.
C. BEEFSTAKE represents and warrants:
(1) That BEEFSTAKE has and shall have the full right and
authority to enter into this Agreement and to carry out all rights and
obligations of BEEFSTAKE expressed, implied and contemplated in this
Agreement.
▇. ▇▇▇▇ represents and warrants:
(1) That ▇▇▇▇ has and shall have the full right and
authority to enter into this Agreement and to carry out all rights and
obligations of BEEFSTAKE expressed, implied and contemplated in this
Agreement.
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E. RICHFIELD represents and warrants:
(1) That RICHFIELD has and shall have the full right and
authority to enter into this Agreement and to carry out all rights and
obligations of RICHFIELD expressed, implied and contemplated in this
Agreement.
ARTICLE X
Administrative Provisions of the Venture
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A. Management of Venture. In the management of the business of
---------------------
the Venture, each party to the Venture shall have one vote for each One
Percent (1%) of participation in the profits of the Venture as set
forth in Article VII hereof. Except as otherwise specifically provided
herein and specifically in Article VIII, decisions as to all matters in
the management of the business of the Venture shall be decided by a
simple majority of the total votes of the Venture (elsewhere referred
to as a majority of the Venturers). At all meetings of Venturers, a
Venturer may vote by proxy, executed in writing by the Venturer or its
duly authorized attorney-in-fact or corporate officer, but no proxy
shall be valid after eleven (11) months from the date of such proxy
unless the proxy provides for a longer period. Such
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proxies shall be filed with the entity designated by the Venturers
prior to or at the time of the meeting.
B. Annual Meetings of the Venturers. The Venturers agree that
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there shall be annual meetings of the Venturers held on dates and at
locations chosen by the Venturers. Any business of the Venture may be
transacted at the annual meeting. Formal written minutes of all
meetings of the Venturers and any committees established by the
Venturers shall be prepared and maintained by BHN's agent for
inspection by the Venturers.
C. Special Meetings of the Venturers. Any number of Venturers
---------------------------------
having Thirty-three Percent (33%) or more in interest of the total
Venture interest may call a meeting of the Venturers by giving notice
to all Venturers and setting forth in such notice the purpose or
purposes of the meeting.
D. Informal Action by Venturers. Any action required or
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permitted to be taken at any meetings of the Venturers may be taken
without a meeting if, prior to such action, a written consent thereto
is signed by an officer of each of the Venturers setting forth the
actions so to be taken and filed in the minutes of the proceedings of
the Venturers.
E. Telephonic Meetings. The Venturers shall be deemed present at
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a meeting if there is used a conference telephone or similar
communications equipment by means of which duly authorized officers or
representatives of each Venturer participating in the meeting can hear
each other at the same time.
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F. Books and Records. Full and accurate books of the Venture
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shall be maintained at the Venture's principal place of business
showing all receipts and expenditures, assets and liabilities, profits
and losses, and all other records necessary for recording the Venture's
business and affairs. The books of the Venture shall be kept on a cash
basis and shall be kept in conformance with generally accepted
accounting principles and practices in accordance with standards
generally expected by national accounting firms. All Venturers or their
respective duly authorized representatives shall at all times during
regular business hours have access to and may inspect and copy any of
such books and records.
G. Fiscal Year. The fiscal year of the Venture shall be January
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1 to December 31 or any other twelve-month period selected by the
Venturers from time to time.
H. Reports. Annual audited financial statements showing at least
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the income and expenses of the Venture for the fiscal year and the
balance sheet thereof as of the end of such year shall be prepared by
an accounting firm (the "accountants") selected by a majority of the
Venturers. The audited financial statements of the Venture shall be
prepared in conformance with generally accepted accounting principles.
Each party to the Venture shall be furnished copies of such statements
of income and expenses and of such balance sheets within one hundred
twenty (120) days after the end of each fiscal year of the Venture.
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I. Bank Accounts and Investments of Funds. All funds of the
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Venture shall be deposited in its name in such checking and savings
accounts or time deposits or certificates of deposit as shall be
designated from time to time by a majority of the Venturers.
Withdrawals therefrom shall be made upon such signatures of such
persons as may be designated from time to time. The Venture may only
invest funds in any investments which a national bank is permitted to
carry in its investment portfolio.
ARTICLE XI
Restriction on Venturers
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No Venturer, without the consent of the other Venturers,
shall:
(1) Borrow or lend money, make, deliver or accept any
commercial paper on behalf of the Venture.
(2) Execute any mortgage, bond or lease on behalf of the
Venture.
(3) Assign, transfer or pledge any debts due the Venture or
release any debts due the Venture, except on payment in full.
(4) Compromise any claim due the Venture or submit to
arbitration any dispute or controversy involving the Venture.
(5) Purchase or contract to purchase any property on behalf
of the Venture.
(6) Sell, assign or license any patent, trademark or patent
owned by the Venture.
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(7) Enter into employment contracts on behalf of the
Venture.
(8) Do any act detrimental to the best interest of the
Venture which would make it impossible to carry on the ordinary
business of the Venture.
(9) In the absence of full compliance with applicable
provisions of Article XII and Article XIII hereof, sell, assign,
pledge, mortgage or otherwise encumber or transfer its interest in the
capital or profits and losses of the Venture to enter into any
agreement as a result of which any person shall become interest with it
in the Venture.
ARTICLE XII
Voluntary Transfers
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Of Venture Interest
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A. Restrictions on Granting Security Interest. A Venturer shall
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not, directly or indirectly, mortgage, encumber, pledge or assign or
transfer for financing purposes or otherwise give or grant any security
interest in all or any part of its Venture interest without first
obtaining the consent of the other Venturers. In the event such consent
is obtained, the mortgagee, encumbrancer, pledgee, assignee, or
transferee shall be entitled to receive Venturer's interest in the
profits and losses of the Venture and should liquidation of the Venture
occur, the right to receive the Venturer's allocable share of the
remaining assets. However, pursuant to Florida Statute 620.60, in the
absence of the written agreement of all Venturers, there shall be no
entitlement
- 22 -
to the mortgagee, encumbrancer, pledgee, assignee, or transferee to
participate or interfere in the management of the administration of the
Venture's business or affairs. The consent to directly or indirectly,
mortgage, encumber, pledge or assign or transfer for financing purposes
or otherwise give or grant any security interest shall not otherwise
release such Venture interest from the other restrictions contained in
this Agreement, but such restrictions shall merely become subject to
the security interest to which such consent expressly applies for the
duration of such security interest only, and in the event the holder of
such security interest shall foreclose upon such Venture interest or
otherwise acquire such Venture interest, such holder shall take such
Venture interest subject to the restrictions contained in this
Agreement, and it shall be subject to all such restrictions the same as
if such holder were a party to this Agreement.
B. Restrictions on Transfer. A Venturer shall not, directly or
------------------------
indirectly, sell, assign, transfer or otherwise dispose of all or any
part of its Venture interest other than to its parent, controlled
affiliates, subsidiaries, an entity substantially owned by the
Venturer's shareholders or the Venturer's shareholders without first
obtaining the consent of the other Venturers, or in the absence of such
consent, without first complying with all of the following terms and
conditions:
(1) Right of Existing Venturer to Buy. Except as hereinabove
---------------------------------
provided, in the event a Venturer desires, directly or
- 23 -
indirectly, to sell, assign, transfer or otherwise deal with or dispose
of all or any part of its Venture interest, the Venturer (hereinafter
referred to as the "selling Venturer") shall be required to offer to
sell its Venture interest by delivering a notification (hereinafter
referred to as the "offer to sell"), signed by the selling Venturer to
the other Venturers, stating the amount of its Venture interest which
it desires to sell, assign or transfer. The other Venturers shall then
have the option to purchase their proportionate share of the Venture
interest offered pursuant to the offer to sell or the share of
Venturers not exercising their option, which option may be exercised by
delivering a notification of acceptance to the selling Venturer within
sixty (60) days after delivery to it of the said offer to sell.
C. Determination of Purchase Price and Terms. In the event that
-----------------------------------------
any Venture interest is to be purchased pursuant to the foregoing
provisions of this Article XII, the following provisions shall apply:
(1) Price. Each One Percent (1%) of Venture interest to be
-----
purchased pursuant to the foregoing provisions of this Article XII
shall be purchased at the price specified in Article XIV of this
Agreement, and fractions of One Percent (1%) of Venture interest shall
be purchased at the appropriate proportion of the price specified in
Article XIV of this Agreement.
- 24 -
(2) Manner of Payment. The purchase price of any Venture
-----------------
interest to be purchased pursuant to the foregoing provisions of this
Article XII shall be paid in accordance with the provisions of
Paragraph F of this Article.
D. Right of Selling Venturer to Sell. In the event that the
---------------------------------
other Venturers fail or refuse to purchase all of the Venture interest
offered for sale by the selling Venturer pursuant to the offer to sell
in accordance with the provisions of this Agreement, then after the
expiration of the option period, the selling Venturer shall be free to
sell, transfer or otherwise dispose of the Venture interest offered
pursuant to the offer to sell made and delivered in accordance with the
provisions of this Agreement and not accepted for purchase by the other
Venturers, as hereinabove provided, to any person or entity, in any
manner and upon any terms and conditions; provided however, that such
selling Venturer shall not in fact sell, transfer or otherwise dispose
of any Venture interest to any person or entity either for a price less
than or on terms more favorable than the purchase price and the terms
fixed by this Agreement without first offering the other Venturers the
right to purchase such Venture interest at the same price and upon the
same terms as agreed between such selling Venturer and any other person
or entity. In carrying out the intent of the immediately preceding
sentence, the same procedure and time periods as specified in the
preceding paragraphs of this Article shall again be followed except
that the notice provided
- 25 -
the other Venturers shall specify the name and address of the person or
entity to whom the selling Venturer proposes to sell its Venture
interest and the price and terms offered by such person or entity for
such Venture interest. The selling Venturer shall also provide the
other Venturers with a copy of the contract of sale (subject to the
right of first refusal herein granted to the other Venturers) and
evidence of a deposit made by the proposed purchasers which must be
equal to not less than Five Percent (5%) of the purchase price. In the
event that the other Venturers shall then fail or refuse to purchase
all the Venture interest offered for sale pursuant to this Agreement,
then after the expiration of the option period, the selling Venturer
shall not be required to sell any part of its Venture interest to the
other Venturer, but shall then be free to sell to such other person or
entity the Venture interest not purchased by the other Venturers in
accordance with the foregoing provisions of this Agreement for the
price and upon the terms set forth in such notice. Any sale, or other
disposition that may take place after the end of all applicable option
periods specified above must, in any event, take place within ninety
(90) days following the close of all applicable option periods, and
upon the expiration of such ninety (90) day period, the provisions of
this Agreement shall reattach to all of the Venture interest not sold,
transferred or otherwise disposed of during said ninety (90) day
period.
- 26 -
E. Application to Transferees. This Agreement shall apply to any
--------------------------
permitted transferee of any Venture interest.
F. Time and Method of Payment. Within sixty (60) days after
--------------------------
there has been an offer and acceptance under this Article, except an
offer and acceptance under Paragraph D, any purchaser of any Venture
interest pursuant to this Article shall pay the purchase price therefor
in full to the seller or its assignee in cash or certified cashier's
check.
ARTICLE XIII
Transfer of Venture Interest on
-------------------------------
Insolvency, Bankruptcy or Appointment
-------------------------------------
Of a Receiver or Trustee for a Venturer
---------------------------------------
A. Option of Other Venturer to Buy. Upon the insolvency,
-------------------------------
bankruptcy or appointment of a receiver or trustee for one of the
Venturers (hereinafter called "Distressed Venturer"), then the other
Venturers shall have the option to purchase the Venture interest of the
Distressed Venturer, and Distressed Venturer or its representative
shall, upon proper exercise of said option, sell to the other Venturer
such Distressed Venturer's Venture interest; provided however, that
such option shall not arise with respect to a Venturer for whom a
receiver or trustee has been appointed but for whom no adjudication or
settlement has occurred unless such action has not been resolved
favorably to such Venturer within one hundred twenty (120) days after
appointment of such receiver or trustee. Such option shall be
exercisable by the other Venturers by notice of exercise any time
within one hundred
- 27 -
eighty (180) days after such other Venturers are notified or otherwise
become aware of such action. The other Venturers shall mutually agree
as to the percentage of the Distressed Venturer's Venture interest each
shall purchase. If no agreement is reached, each shall have an option
for a proportionate share of Distressed Venturer's Venture interest
based upon purchasing Venturer's proportionate interest in the Venture
without considering Distressed Venturer's interest.
B. Determination of Purchase Price and Terms. In the event that
-----------------------------------------
any Venture interest is to be purchased pursuant to the foregoing
provisions of this Article XIII, the following provisions shall apply:
(1) Price. The Venture interest to be purchased pursuant to
-----
the foregoing provisions of this Article XIII, shall be purchased at
the price equal to total capital account of the distressed Venturer.
(2) Manner of Payment. The purchase price of any Venture
-----------------
interest to be purchased pursuant to the foregoing provisions of this
Article XIII shall be paid in accordance with the provisions of
Paragraph D of this Article.
C. Application to Transferees. This Agreement shall apply to the
--------------------------
transferee of any Venture interest.
D. Time of Closing and Method of Payment. Upon the closing of
-------------------------------------
any sale pursuant to this Article XIII, any purchaser of any Venture
interest shall pay the purchase price therefor in full to
- 28 -
the seller or its assignee in cash or certified cashier's check. The
closing shall be held on or before the 90th day subsequent to exercise
of the options set forth in this Article XIII or to the extent required
by law or a court having jurisdiction within thirty (30) days after any
required third party approval, whichever shall last occur.
ARTICLE XIV
Purchase Price
--------------
A. Determination of Purchase Price by the Ventures. The
-----------------------------------------------
Venturers agree that where the purchase results from a transfer
pursuant to an offer to sell as provided in Article XII and not because
of a transfer pursuant to Article XIII, then the purchase price of a
One Percent (1%) Venture interest shall be the agreed value of such
interest as reflected initially on Exhibit "A" and as determined from
time to time by agreement of a majority of the Venturers and recorded
on a new or amended Exhibit "A" or the minutes of a Venture meeting. It
is the intention of the Venturers that the value for purposes of this
Agreement shall be reviewed at least annually. In the event the
aforesaid valuation has not been reviewed and redetermined within
twenty-four (24) months preceding an event requiring determination of
purchase price, then in that event, the purchase price shall be at fair
market value as determined by an appraiser selected by both the
- 29 -
selling Venturers and the other Venturers provided both the selling
Venturers and the other Venturers agree to the purchase price
determined by the selected appraiser. Otherwise the purchase price
shall be at fair market value as determined by an average of the
closest two determinations of a panel of three arbitrators selected in
the following manner:
(1) One arbitrator selected by the selling Venturer.
(2) One arbitrator selected by the other Venturers.
(3) One arbitrator selected by the two arbitrators
designated by the selling and the other Venturers. Arbitration shall be
conducted in accordance with the provisions of Chapter 682 of the
Florida Statutes or successor statutes as amended from time to time,
and the determination of fair market value shall be conclusive.
The purchase price as determined in accordance with the provisions
of this Article XIV shall be binding upon the Venturers and all
successors and assigns of the Venturers.
ARTICLE XV
Venture Income Tax Returns
--------------------------
A copy of any Venture income tax return required to be filed with
the taxing authorities shall be given to each Venturer within one month
before that return is required to be filed.
- 30 -
ARTICLE XVI
Dissolution and Liquidation
---------------------------
The Venture shall be dissolved upon the occurrence of any of the
following:
(1) The consent of each of the Venturers to dissolve and
terminate the Venture;
(2) The sale or condemnation of all or substantially all of
the assets of the Venture, or the expiration of the term of the Venture
provided in Article III hereof.
In addition, any event of dissolution of the Venture provided in
the Florida Uniform Partnership Act shall cause the dissolution of the
venture, except that no Venturer shall have the right to demand
dissolution or to withdraw from the Venture, except in accordance with
the restrictions on transfer of its Venture interest provided in this
Agreement, and except that no event of dissolution shall cause the
Venture to be dissolved and liquidated if the surviving or remaining
Venturers shall elect to continue the Venture. Subject to the
foregoing, in the event of dissolution, the Venture shall be
immediately liquidated, due allowance being made for reasonable time to
wind up the affairs of the Venture in an orderly and businesslike
manner. Upon liquidation, the property of the Venture shall be applied
and distributed in the following order:
(1) To the payment of all debts and liabilities of the
Venture and the expenses of liquidation of the Venture.
- 31 -
(2) To the establishment of such reasonable reserves as may
be deemed advisable by a majority in interest of the Venturers for any
consequent contingent liabilities or obligations of the Venture.
(3) To the repayment of any loans or advances made by any of
the Venturers to the Venture.
(4) To the repayment to the Venturers of the balances in
their respective capital accounts.
(5) To the Venturers in the ratios in which they participate
in the profits and losses of the Venture as set forth in Exhibit "A"
hereto or amendments thereto.
ARTICLE XVII
Termination of Agreement
------------------------
A. Termination as to All Venturers. This Agreement shall
-------------------------------
terminate upon the occurrence of one of the following events:
(1) The complete liquidation of the Venture upon dissolution
thereof, in accordance with the provisions of Article XVI hereof with
respect to dissolution and liquidation.
(2) Upon written revocation or termination of this Agreement
signed by all of the Venturers.
B. Termination as to Selling or Withdrawing or Dissolved,
-----------------------------------------------------
Insolvent, Bankrupt, etc. Venturer. Upon the sale, assignment or other
----------------------------------
transfer (other than an assignment or transfer solely for the purpose
of providing security for a promise, obligation or performance) by a
Venturer or its legal representative
- 32 -
(hereinafter "selling Venturer") to a permitted person, persons, entity
or entities and substitution of such person or persons or entity or
entities as a Venturer in place of the selling Venturer in accordance
with and in compliance with this Agreement, this Agreement shall
terminate with respect to such selling Venturer upon the closing of
such sale, assignment or other transfer.
ARTICLE XVIII
Indemnity and Contributions
---------------------------
Should the Venture or one of the Venturers in its behalf be
required to pay sums on account of liability imposed on the Venture by
the acts of the other Venturers referred to in Section 620.62 and
620.625 of the Florida Uniform Partnership Act, the Venture or the
Venturer advancing, paying or otherwise becoming liable for monies by
reason of such acts of the other Venturers shall be entitled to be
indemnified and compensated for the payment of such monies by the
offending Venturer. Should any Venturer pay or become liable for any
obligation of the Venture, he shall be entitled to contribution from
the other Venturers on a pro rata basis according to their respective
interest in the Venture.
ARTICLE XIX
Amendment
---------
No amendment or variations to the terms of this Agreement shall be
valid unless made in writing and signed by all the Venturers.
- 33 -
ARTICLE XX
Notices
-------
A. Method of Effecting Notice. No notice request, consent,
--------------------------
approval, waiver or other communication required or permitted under
this Agreement shall be effective, unless such communication is in
compliance with the provisions of Article IV-O hereof.
ARTICLE XXI
Rules of Construction
---------------------
A. Complete Agreement. This Amended and Restated Agreement,
------------------
including the exhibits and schedules attached hereto and made a part
hereof, constitutes the entire agreement among the parties pertaining
to the subject matter hereof and supersedes all prior verbal and
written and all contemporaneous verbal agreements and understandings of
the parties in connection with the subject matter hereof. No covenant,
representation or condition not expressed in this Agreement shall be
binding upon the parties hereto or shall affect or be effective to
interpret, change or restrict the provisions of this Agreement. No
change, modification or termination of any of the provisions hereof
shall be effective unless this Agreement is amended in accordance with
the provisions of Article XIX hereof.
B. Invalid Provisions. In the event that any provision of this
------------------
Agreement shall be held to be invalid, the validity of the remainder
shall not in any way be affected thereby.
- 34 -
C. Governing Law. This Agreement shall be governed and construed
-------------
in accordance with the laws of the State of Florida. In addition, it is
specifically agreed that the partnership laws of the State of Florida
(Chapter 620) shall be applicable to this Agreement.
D. Gender and Number. All pronouns and variations thereof shall
-----------------
be deemed to refer to the masculine, feminine or neuter and to the
singular and plural, as the identity of the person, persons or entity
may require.
E. Titles. Titles of the articles and paragraphs of this
------
Agreement are provided for convenience of reference only, and they in
no way define, limit, extend or describe the scope or extent of this
Agreement or any of its provisions.
F. Successors and Assigns. The terms and conditions of this
----------------------
Agreement shall be binding upon and shall enure to the benefit of the
heirs, successors and assigns of the Venturers.
- 35 -
G. Effective Date. This Agreement shall become and be deemed to
--------------
be effective as of January 1, 1981, notwithstanding the execution of
this Agreement this 9th day of June, 1981.
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, INC.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
As President
NAPLES TOMATO GROWERS, INC.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
President
BEEFSTAKE TOMATO GROWERS, INC.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
President
▇. ▇▇▇▇ & SONS, INC.
BY: /s/ ▇.▇. ▇▇▇▇
----------------------------
Exec. Vice President
- 36 -
RICHFIELD PACKING CORPORATION,
INC.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
President
- 37 -
EXHIBIT "A"
-----------
Percentages of Initial Contributions to the Capital of the
Venture and Amounts:
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, INC. 20% $136,500.00
NAPLES TOMATO GROWERS, INC. 40% $273,000.00
BEEFSTAKE TOMATO GROWERS, INC. 10% $ 68,250.00
▇. ▇▇▇▇ & SONS, INC. 20% $136,500.00
RICHFIELD PACKERS, INC. 10% $ 68,250.00
The Venturers shall participate in the profits and losses of
the Venture according to the percentages provided above with the
exception that for fiscal year ending 1981, alone, the first
Ninety-Eight Thousand Three Hundred Twenty-Two Dollars
($98,322.00) of loss shall be allocated as follows:
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, INC. $ -0-
NAPLES TOMATO GROWERS, INC. $26,219.00
BEEFSTAKE TOMATO GROWERS, INC. $ 3,277.00
▇. ▇▇▇▇ & SONS, INC. $45,884.00
RICHFIELD PACKERS, INC. $22,942.00
The remaining loss incurred for fiscal year ending 1981 shall
be allocated according to the percentages provided above.
Pursuant to Article XIV, the purchase price of a 1% interest
is $6,825.00.
- 38 -
EXHIBIT "B"
-----------
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
NAPLES TOMATO GROWERS, INC.
Route 2, Box ▇▇▇▇
▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
BEEFSTAKE TOMATO GROWERS, CIN.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇ & SONS, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
RICHFIELD PACKING CORPORATION, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
- 39 -
AMENDMENT
---------
Pursuant to Article XIX of the BHN Joint Venture Agreement,
Amended and Restated, dated January 1, 1981 the undersigned, being all
of the Venturers, hereby agree to amend the BHN Joint Venture Agreement
in the following respect:
The BHN Joint Venture shall continue in existence and the
termination date shall be extended until October 31, 1994. This
Amendment shall be effective from October 31, 1989.
▇. ▇▇▇▇ & Sons, Inc.
By: /s/ ▇.▇. ▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Naples Tomato Growers, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Beefstake Tomato Growers, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
- 40 -
ASSIGNMENT OF INTEREST IN BHN, A JOINT VENTURE
----------------------------------------------
In consideration of the sum of $10.00, and other good and valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, NTGargiulo, Inc., a Florida corporation ("Assignor")
having an address at ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, hereby
assigns and transfers to NTGargiulo, L.P., a Delaware limited
partnership ("Assignee") having an address at ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, all of Assignor's right, title and interest in
and to an 80% joint venture interest under and pursuant to that certain
BHN Amended and Restated Joint Venture Agreement executed on January 1,
1981, as amended by that certain Amendment dated October 31, 1989,
between ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, Inc. and Assignor (as successor in interest
to Naples Tomato Growers, Inc. and Beefsteak Tomato Growers, Inc.).
IN WITNESS WHEREOF, Assignor has caused this instrument to be
executed by its authorized representative as of this 23rd day of
December, 1992.
NTGARGIULO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
- 41 -
AMENDMENT TO BHN JOINT VENTURE AGREEMENT
This Amendment to Joint Venture Agreement is entered into as
of the 31st day of October, 1994 by and between NTGargiulo, L.P.,
a Delaware limited partnership ("NTG LP") and ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇,
Inc. ("▇▇▇▇▇▇▇"), being all of the Venturers of the Venture.
W I T N E S S E T H:
WHEREAS, NTG LP and ▇▇▇▇▇▇▇ entered into a Joint Venture
Agreement effective November 1, 1979, as amended and restated on
January 1, 1981 and amended as of October 31, 1989 (the
"Agreement"); and
WHEREAS, the parties hereto desire to amend and supplement
the Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. All capitalized terms used herein and not
-----------
otherwise defined shall have the meanings set forth in the
Agreement.
2. Expiration. Article III of the Agreement is hereby
----------
amended to provide that the Venture shall continue until
December 31, 1995, or until dissolved as provided in said Article
III.
3. Except as amended hereby, the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to BHN Joint Venture Agreement to be duly executed as of
the date first above written.
NTGargiulo, L.P., by
NTGargiulo G.P., Inc., its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: President
-----------------------------
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., President
- 42 -