AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
FOODMASTER INTERNATIONAL L.L.C.
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT ("Agreement") is made and entered into as of this 11th
day of September, 1998 by and between (i) API DAIRY PARTNERS L.P.
("API I") and AGRIBUSINESS PARTNERS INTERNATIONAL ▇.▇. ▇▇ ("API
II"), both of which are limited partnerships organized and
existing under the laws of the State of Delaware, with their
principal offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
(API I and API II hereinafter collectively referred to as "API"),
and (ii) DEVELOPED TECHNOLOGY RESOURCE, INC., a Minnesota
corporation organized and existing under the laws of the State of
Minnesota with its principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter referred to as
"DTR").
WITNESSETH
WHEREAS, API I is a holding company formed to hold
dairy investments made by Agribusiness Partners International,
L.P., which is an investment fund formed for the purpose of
investing in agribusiness in the former Soviet Union and which is
guaranteed by the Overseas Private Investment Corporation
("OPIC") and governed by an OPIC financing agreement;
WHEREAS, API II is an affiliate of API I and has also
been formed for the purpose of investing in agribusiness in the
former Soviet Union, but which is not guaranteed by OPIC;
WHEREAS, API and DTR entered into that certain Limited
Liability Company Agreement (the "Original Agreement"), dated as
of March 3, 1997 (the "Closing"), pursuant to which API and DTR
established Foodmaster International L.L.C., a Delaware limited
liability company (the "Company"); and
WHEREAS, API and DTR desire to amend and restate the
Original Agreement as set forth herein.
NOW, THEREFORE, for and in consideration of the
premises and mutual covenants set forth herein, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. In addition to the other terms
defined in this Agreement, the following terms shall have the
respective meanings set forth below:
(a) "Capital Contribution" means, with respect to any
Member, the amount of capital contributed by such Member to the
Company as set forth in Article 3 hereof.
(b) "Certificate of Formation" means the certificate
of formation of the Company as filed in the Office of the
Secretary of State of the State of Delaware on February 27, 1997,
as amended from time to time.
(c) "Current Ratio" means current assets divided by
current liabilities.
(d) "Debt Ratio" means the sum of total current
liabilities and long term debt divided by total assets.
(e) "Dollars" means the lawful currency of the United
States of America.
(f) "GAAP" means generally accepted accounting
principles as used in the United States.
(g) "Interest" means the ownership interest of a
Member in the Company (which shall be considered personal
property for all purposes), consisting of (i) such Member's right
to receive profits, losses, allocations, and distributions, (ii)
such Member's right to vote or grant or withhold consents with
respect to Company matters as provided herein or in the Delaware
Act, and (iii) such Member's other rights and privileges as
herein provided.
(h) "Members" means API and DTR and all other persons
who may become Members of the Company as provided herein.
(i) "Percentage Interest" means the interests of API
and DTR as determined pursuant to Section 5.2. The Percentage
Interests of API I an API II, shall be equal to 95% and 5%,
respectively, of API's Percentage Interest as determined pursuant
to the terms of this Agreement.
1.2 Other Definitional Provisions. Unless the context of
this Agreement clearly requires otherwise, references to the
plural include the singular; references to the singular include
the plural; and references to the masculine gender include the
feminine and neuter genders. The words "hereof", "herein", and
similar terms refer to this Agreement as a whole. The term
"including" is not limiting and the term "or" has the inclusive
meaning represented by the term "and/or."
ARTICLE II
THE COMPANY
2.1 Purposes and Activities. The business and purpose of
the Company shall be to produce, package and distribute high-
quality branded dairy and juice products, and such other products
as are unanimously agreed to by the Members, in the former Soviet
Union.
2.2 Principal Office. The principal place of business of
the Company shall be located at the offices of DTR at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ or such other place
as the Members may from time to time determine. The registered
office of the Company in the State of Delaware shall be located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and the
registered agent of the Company for service of process at such
address shall be The Corporation Trust Company (or such other
registered office and registered agent as the Members may from
time to time select).
2.3 Term. The provisions of this Agreement shall be deemed
to take effect as of the Closing. The Company shall dissolve in
accordance with the provisions of Section 7.1.
ARTICLE III
CAPITAL STRUCTURE
3.1 Capital Contributions.
(a) As of the date of this Agreement, API has made
Capital Contributions to the Company in the amount of Six Million
Dollars ($6,000,000) and DTR has made Capital Contributions to
the Company in the amount of Four Million Dollars ($4,000,000).
(b) In addition to the Capital Contributions made by
API to the Company as set forth in Section 3.1(a), API shall make
Capital Contributions to the Company of up to Four Million
Dollars ($4,000,000) (the "API Contribution") (the percentage of
each Capital Contribution to be made by API pursuant to this
Agreement shall be contributed by API I and API II based on their
respective Percentage Interests), in one or more installments in
such amounts and at such times as requested by the Company (each
a "Capital Request"), which shall be contributed by bank transfer
to the Company's Dollar-denominated bank account maintained at
U.S. Bank, International Moscow Bank or another bank acceptable
to API. The amount of the API Contribution may be increased to
an amount not to exceed Six Million Dollars ($6,000,000), upon
agreement of the Members, provided that such agreement is reached
by October 15, 1998.
(c) In addition to the Capital Contributions made by
DTR to the Company as set forth in Section 3.1(a), with respect
to each Capital Request, DTR shall be entitled to make a Capital
Contribution in an amount equal to forty percent (40%) of the
amount of the Capital Request. In the event that DTR elects to
make such a Capital Contribution pursuant to this Section 3.1(c)
with respect to a Capital Request, the amount of the Capital
Contribution to be made by API with respect to such Capital
Request shall be reduced by the amount of DTR's Contribution.
3.2 Additional Capital Contributions. Except as
unanimously agreed to by the Members, no Member shall be required
or permitted to make any additional Capital Contributions to the
Company except as specified in Section 3.1.
3.3 Failure to Contribute. In the event that API is
required to make a Capital Contribution pursuant to Sections
3.1(b) and fails to make such Contribution, the number of
Directors that API and DTR shall each be entitled to appoint
pursuant to Article IV shall be adjusted to reflect the Capital
Contributions as of such date, provided that the rights contained
in Article IV shall be restored upon the making of such
contribution by API.
3.4 Return of Capital. No Member has a right to withdraw
its Capital Contribution except upon liquidation of the Company
or as otherwise provided for in this Agreement. No interest
shall accrue or be paid by the Company with respect to any
Capital Contribution.
ARTICLE IV
MANAGEMENT
4.1 Management/Voting.
(a) The management of the Company shall be vested in a
Board of Directors (the "Board") consisting of five (5) members,
three (3) of whom shall be appointed by API and two (2) of whom
shall be appointed by DTR. The Board may appoint, employ, or
otherwise contract with any persons or entities for the
transaction of the business of the Company or the performance of
services for or on behalf of the Company, and the Board may
delegate to any such person (who may be designated an officer of
the Company) or entity such authority to act on behalf of the
Company as the Board may from time to time deem appropriate. The
Company shall enter into an amended and restated management
agreement with DTR, dated as of the date of this Agreement and in
the form of Exhibit A hereto (the "Management Agreement"),
pursuant to which DTR shall manage the business of the Company.
(b) With respect to all matters submitted to a vote of the
Members, API shall be entitled to cast sixty percent (60%) of all
votes and DTR shall be entitled to cast forty percent (40%) of
all votes.
4.2 Removal/Vacancy. Any Director may be removed by the
Member appointing such Director. Upon the death, retirement or
removal of any Director, the Member appointing such Director may
appoint a replacement.
4.3 Actions by the Board. Except as otherwise specified in
this Agreement, any action to be taken or approved by the Board
requires the approval of a majority of the Directors.
4.4 Committees of the Board. The Directors may appoint
from among their number one or more committees and may delegate
to such committee any of the powers of the Directors.
4.5 Meetings of Board. Meetings of the Board may be called
by any Director provided that the Board shall meet at least once
during each calendar quarter. Three (3) Directors shall
constitute a quorum for the transaction of business and
notwithstanding any vacancy on the Board, a quorum may exercise
all powers of the Board. Meetings of the Board shall be held at
such time and place as determined by the Board. Notice of such
meetings shall be provided to each Director at least ten (10)
days prior to the meeting. The Board may act without a meeting
provided that such action is consented to in writing by each
Director then in office. Directors may participate in any
meeting of the Board by conference call or similar communications
equipment by means of which all persons can hear each other, and
participation by such means shall constitute attendance at such
meeting.
4.6 Distribution. Distributions to Members shall be made
in such amounts and at such times as determined by the Board
based on the budget and business plan in effect and on the
current and expected cash flow needs of the Company.
4.7 Financial Statements.
(a) The Company shall cause annual audited financial
statements for the Company to be prepared in accordance with GAAP
and provided to Members within ninety (90) days of the end of the
Company's fiscal year. The Company shall also cause an audit to
be performed on an annual basis of each entity controlled by the
Company which audit shall be performed in accordance with GAAP
and in accordance with any applicable local accounting principles
and practices.
(b) The Company shall cause monthly financial
statements for the Company to be prepared and provided to Members
within twenty (20) days of the end of each calendar month.
4.8 Extraordinary Actions. In addition to other actions
identified herein requiring unanimous approval of the Members,
the Company shall not (i) sell or otherwise dispose of all or
substantially all of its assets unless such sale or disposition
is unanimously approved by the Members provided that such
approval shall not be unreasonably withheld, (ii) undertake any
new investment projects unless such projects are unanimously
approved by the Members, or (iii) terminate the Management
Agreement unless such termination is unanimously approved by the
Members.
ARTICLE V
ALLOCATIONS/PERCENTAGE INTERESTS
5.1 Allocations. All items of Company income, gain,
loss, deduction, credit, or the like shall be allocated among the
Members in accordance with their respective Percentage Interests
(as adjusted pursuant to Section 5.2) as of the end of the fiscal
year with respect to which such items were incurred.
5.2 Percentage Interests. (a) Subject to adjustment
pursuant to subparagraphs (b) and (c), the Percentage Interests
of each of the Members shall be determined as follows:
(i) The Percentage Interest of API shall be equal
to (x) the sum of $10.8 million plus the amount of all
Capital Contributions made by API pursuant to Section
3.1(b), divided by (y) $18 million plus the sum of all
Capital Contributions made by API and DTR pursuant to
Section 3.1(b) and 3.1(c), respectively.
(ii) The Percentage Interest of DTR shall be
equal to the sum of (x) $7.2 million plus the amount of
all Capital Contributions made by DTR pursuant to
Section 3.1(c) divided by (y) $18 million plus the sum
of all Capital Contributions made by API and DTR
pursuant to Section 3.1(b) and 3.1(c), respectively.
(b) As of the last day ("Adjustment Date") of each
calendar year ("Calculation Period") in the five year period
commencing on January 1, 1998, DTR's Percentage Interest shall be
increased (and API's Percentage Interest correspondingly
decreased) in the event that the net income of the Company,
calculated in accordance with GAAP as audited by the Company's
independent auditors, for the Calculation Period ending on the
Adjustment Date exceeds a target return of twenty percent (20%)
of the Members' Equity (as defined below), calculated in
accordance with GAAP as audited by the Company's independent
auditors, as of the beginning of the first day of the Calculation
Period (the "Target Return"), in accordance with the following
formula:
A = [(B x ME) + [C x (1 - B)]] ? [ME]
where
A = DTR's Percentage Interest after annual adjustment
pursuant to this Section 5.2(b);
B = DTR's Percentage Interest prior to annual
adjustment pursuant to this Section 5.2(b);
ME = "Members' Equity" which shall be equal to all
capital invested in the Company by the Members,
plus retained earnings and other adjustments made
pursuant to GAAP, as set forth on the Company's
balance sheet as of the beginning of the
Calculation Period; and
C = Twenty percent (20%) of the amount by which the
net income of the Company for the Calculation
Period, determined in accordance with GAAP as
audited by the Company's independent auditors,
exceeds the Target Return for such Calculation
Period.
Notwithstanding the foregoing, the aggregate increase
to DTR's Percentage Interest pursuant to this Section 5.2(b)
shall not exceed ten (10) percentage points in excess of the
Percentage Interest determined pursuant to Section 5.2(a) (e.g. a
Percentage Interest of 30% could not be increased to a Percentage
Interest of greater than 40% pursuant to this Section 5.2(b)).
No reductions in DTR's Percentage Interest shall be made pursuant
to this Section 5.2(b).
(c) In addition to any adjustments that may be made
pursuant to Section 5.2(b), it is the intent of the Members that,
upon the sale, transfer, liquidation or other disposition by API
of its Interest, DTR's Percentage Interest shall be increased to
the extent that API earns an actual Internal Rate of Return over
the term of its investment in the Company ("IRR") in excess of
thirty-five percent (35%). To effect the foregoing, in the event
that API's IRR, calculated as of the date that API sells,
transfers, liquidates, or otherwise disposes of its Interest
("Termination Date") exceeds thirty-five percent (35%), API's
Percentage Interest shall be increased in accordance with the
following formula: for each percentage point (or portion
thereof) by which API's IRR exceeds thirty-five percent (35%),
DTR's Percentage Interest shall be increased (and API's
Percentage Interest correspondingly reduced) in the ratio of one
percentage point for each two percentage points by which API's
IRR exceeds thirty-five percent (35%). The calculation of API's
IRR shall be based upon actual cash amounts received by API as of
the Termination Date and the actual value received by API with
respect to the sale, transfer, liquidation or other disposition
of its Interest, calculated as of the Termination Date.
Notwithstanding the foregoing, the increase of DTR's Percentage
Interest pursuant to this Section 5.2(c) combined with the
increase pursuant to this Section 5.2(b) shall not exceed
thirteen and 33/100 percent (13.33%).
(d) The adjustment of Percentage Interests pursuant to
this Section 5.2 shall not alter the voting/management provisions
contained in this Agreement.
ARTICLE VI
TRANSFERS
6.1 New Members. Additional Members shall not be admitted
in the absence of unanimous consent of the existing Members
except as provided herein.
6.2 Transfers to Third Parties. No Member may sell,
assign, pledge, or otherwise transfer or encumber (collectively
"transfer") all or any part of its Interest and no transferee of
all or any part of any Member's Interest shall be admitted as a
substituted Member, without the unanimous consent of all Members,
provided that if DTR refuses to consent to a transfer proposed by
API, the put-right provided pursuant to Section 6.4 shall become
immediately exercisable.
6.3 Transfer by API After Five Years by Sale or IPO. If
after five years from the Closing, API has not sold its Interest
in the Company, then at API's election, DTR will, at the request
of API, either assist API in the sale of its Interest to a third
party, subject to the consent provisions set forth in Section
6.2, or assist in an initial public offering ("IPO") of Interests
in the Company.
6.4 Put Right. If any time after five years from the
Closing, API has not sold or otherwise liquidated its Interest in
the Company, then API may elect to require the Company to
purchase API's Interest at its fair market value at the time of
election determined as:
(a) The Members shall select a qualified independent
third party who shall provide the Members with an appraisal of
the fair market value of API's Interest.
(b) Based upon the appraisal provided pursuant to
Section 6.4(a), the Members shall agree on a fair market value of
API's Interest.
(c) If the Members fail to reach an agreement on the
fair market value of API's Interest, then the fair market value
shall be determined by arbitration pursuant to Article X, except
that each Member shall select an arbitrator qualified to provide
an appraisal of the fair market value of API's Interest. If the
highest valuation does not exceed the lowest valuation by ten
percent (10%) of each other, then the fair market value will be
the average of the values provided by both of the arbitrators.
If the highest valuation exceeds the lowest valuation by 10% or
greater, then an additional qualified arbitrator shall be
selected by the original arbitrators. The additional arbitrator
shall set the fair market value of API's Interest at a value
between the appraised values provided by the first two
arbitrators.
(d) The Company shall pay API cash in full payment
within forty-five (45) days of the Company's purchase of API's
Interest unless the Current Ratio of the Company is less than 2
to 1 and the Debt Ratio of the Company is greater than 30%. The
Company may then elect to pay for the purchase of API's Interest
with a senior note (or combination of cash and senior note). The
senior note will be superior in right of payment to all debt
obligations of the Company except for debt obligations of the
Company existing at the time of issuance of the note which cannot
by their terms be subordinated to such note. Interest will
accrue on the unpaid principal amount of the senior note at a
rate of twenty-five percent (25%) per annum. Principal and
interest shall be amortized and payable in equal monthly
installments over a term of twenty-four (24) months. The Company
shall have the right to prepay any principal due under the senior
note without penalty.
ARTICLE VII
TERMINATION OF AGREEMENT/LIQUIDATION
7.1 Termination of Agreement. This Agreement shall
terminate and the Company shall be liquidated (i)upon the
unanimous agreement of the Members, (ii) on the date that is
thirty (30) years after the filing of the Certificate of
Formation with the Delaware Secretary of State, or (iii) upon the
withdrawal, bankruptcy, or dissolution of any Member or the
occurrence of any other event that terminates the continued
membership of any Member in the Company under Delaware law unless
the remaining Members unanimously agree to continue the business
of the Company within ninety (90) days of such event. Upon
termination, this Agreement shall be of no further force and
effect provided that the indemnification provisions of Section
12.1 and the confidentiality provision contained in Section 8.2
shall continue in full force and effect.
7.2 API Priority Distribution. If the Company is
liquidated for any reason, sold or refinanced prior to API's
receipt of distributions in an amount equivalent to its Capital
Contributions to the Company, then API shall have priority over
DTR's right to receive any distribution of the assets of the
Company in an amount equal to the amount of API's Capital
Contribution less distributions to API after the payment of all
amounts owed by the Company to creditors. Proceeds in excess of
such amount shall be distributed in accordance with the following
priority: (i) to DTR to the extent of its Capital Contribution
less distributions received, and (ii) to the Members in
proportion to their Percentage Interests. The priority payment
set forth in this Section 7.2 is not intended to prohibit the
making of distributions to Members.
ARTICLE VIII
NON-COMPETITION/CONFIDENTIALITY
8.1 Non-competition.
(a) Subject to the provisions of the following
sentence, neither DTR, nor any affiliate thereof, shall directly
or indirectly own, manage, invest or participate in any
corporation, partnership, joint venture or other enterprise
involved in the production or distribution of dairy or juice, or
other food products produced or distributed by the Company, in
the former Soviet Union except through the Company. The
provisions of this Section 8.1(a) shall not apply to DTR's
interest, as of the date of this Agreement, in a project in
Kazakstan that is involved in the production and distribution of
potato chips provided that DTR does not control or participate in
the management of such project.
(b) API shall not directly or indirectly own, manage,
invest or participate in any corporation, partnership, joint
venture or other enterprise involved in the production or
distribution of dairy products in the former Soviet Union except
through the Company. The prohibition contained in this Section
8.1(b) shall not apply to (i) API's investment in the
Borisoglebsk project, or (ii) any investment by API in any
project provided that API does not participate in the management
of such project.
(c) As used in this Section 8.1, the term "affiliate"
with respect to DTR shall mean any person or entity directly or
indirectly controlling, controlled by, or under common control
with DTR, as the case may be.
8.2 Confidentiality.
(a) Unless otherwise specifically agreed by API and
DTR, during the term of this Agreement and for a period of five
(5) years thereafter, the Company and each Member shall maintain
in confidence, and shall refrain from using or disclosing, all
Confidential Information. For the purposes of this Section 8.2,
"Confidential Information" means all know-how, financial data,
technical data (including the terms of the transactions
contemplated in this Agreement), trade secrets or other
confidential information that the Company has disclosed to any
Member, or that a Member has disclosed to any other Member or the
Company, under or in connection with this Agreement. The Company
and each Member shall cause its directors, current and past
employees, agents and contractors to refrain from using or
disclosing any Confidential Information in any manner, except as
expressly permitted by this Section 8.2.
(b) Notwithstanding the foregoing, this Section 8.2
shall not restrict the use or disclosure of Confidential
Information to the extent that:
(i) the information becomes generally available
to the public without breach of this Section 8.2;
(ii) the recipient lawfully obtains the
information from a third party who is not subject to the terms of
this Agreement;
(iii) the recipient has independently developed
the information prior to disclosure; or
(iv) applicable law requires disclosure of the
information to governmental, legislative or judicial authorities,
provided that the recipient shall give prior notice to the
disclosing party and use its best efforts to require such
authorities to continue to accord confidential treatment to the
information.
(c) Notwithstanding the foregoing, this Section 8.2
shall not restrict the use or disclosure of Confidential
Information to the extent necessary to permit either API or DTR
to undertake any project not prohibited by the provisions of
Section 8.1.
ARTICLE IX
FORCE MAJEURE
9.1 Force Majeure Defined. "Force Majeure" means the
occurrence of circumstances beyond the reasonable control of the
Member affected, and which such Member could not have prevented
by the exercise of reasonable diligence. Events of Force Majeure
include:
(a) earthquakes, floods, fires or other natural
physical disasters; wars or hostilities; riots or civil
disturbances; acts of terrorism or sabotage; governmental
regulations, decrees or actions; and legislative or judicial
actions; or
(b) actions of any persons or groups of persons (i)
with the purpose of obtaining money or property from the Company
or from employees or representatives of the Company by coercion
or intimidation; (ii) threatening the life and/or health of
employees or representatives of the Company or (iii) causing or
threatening to cause material loss to the Company, provided that
adequate evidence of such circumstances is presented to the
satisfaction of the other Members; or
(c) actions of any governmental authority to seize,
confiscate, expropriate or nationalize the Interest of any Member
or its share in the Company or any property of the Company, or
otherwise to prevent any Member from exercising its rights with
respect to the Company as set forth in this Agreement or
applicable law in force on the date hereof.
9.2 Effect of Force Majeure. If an event of Force Majeure
causes a Member's failure or delay in its performance of any
obligations under this Agreement, then such failure or delay
shall be excused (and thus shall not constitute a breach of this
Agreement for as long as the Force Majeure remains in effect).
9.3 Notice of Force Majeure. A Member that fails or delays
to perform any obligations under this Agreement due to Force
Majeure shall so notify the other Members in writing, as promptly
as possible after such occurrence. The notice shall describe the
nature of the Force Majeure, furnish adequate evidence of the
existence and circumstances of the event of Force Majeure and, to
the extent possible, estimate its duration and its likely effects
on the Member's performance of its obligations under this
Agreement.
9.4 Cessation of Force Majeure. A Member whose performance
is affected by a Force Majeure shall use its best efforts to
terminate the effects of such Force Majeure. Upon the cessation
of the Force Majeure, the affected Member shall resume
performance of its obligations as soon as possible. The affected
Member shall notify the other Members as soon as it learns that
the Force Majeure has ceased or appears likely to cease.
ARTICLE X
RESOLUTION OF DISPUTES
10.1 Arbitration. Any dispute, claim or grievance arising
out of or relating to the interpretation or application of this
Agreement, or to the breach, termination of validity thereof,
shall be settled by arbitration in accordance with the then-
current Center for Public Resources Rules of Non-Administered
Arbitration of Business Disputes, by a sole arbitrator. The
arbitration shall be governed by the United States Arbitration
Act, 9 U.S.C. et seq. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction
thereof. The place of the arbitration shall be a neutral city in
the midwestern United States.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 API. API I and API II each represent and warrant to
DTR:
(a) It is a limited partnership duly organized,
validly existing and in good standing under the laws of the State
of Delaware. It has the power and authority to own, lease, and
operate its assets, properties, and businesses and to enter into
this Agreement and to carry out its obligations hereunder. The
execution, delivery, and performance of this Agreement by it have
been duly authorized by all necessary action on its part, and
this Agreement is legally binding upon it in accordance with its
terms.
(b) The execution, delivery, and performance by it of
this Agreement and the transactions contemplated hereby will not
(i) violate the provisions of any order, judgment, or decree of
any court or other governmental agency or any arbitrator
applicable to it, (ii) result in a material breach of or
constitute (with due notice or lapse of time or both) a material
default under any contract or agreement to which it is a party or
by which it is bound; or (iii) violate any provision of law
applicable to it, the violation of which is likely to have a
material adverse effect on the business, operations or condition
(financial or otherwise) of it or the Company.
11.2 DTR. DTR represents and warrants:
(a) DTR is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Minnesota. DTR has the corporate power and authority to own,
lease and operate its assets, properties, and business and to
enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery, and performance of this
Agreement by DTR have been duly authorized by all necessary
corporate actions on the part of DTR, and this Agreement is
legally binding upon DTR in accordance with its terms.
(b) The execution, delivery, and performance by DTR of
this Agreement and the transactions contemplated hereby will not
(i) violate the provisions of any order, judgment, or decree of
any court or other governmental agency or any arbitrator
applicable to DTR or the Articles of Incorporation or Bylaws of
DTR; (ii) result in a material breach of or constitute (with due
notice or lapse of time or both) a material default under any
contract or agreement to which DTR is a party or by which DTR is
bound; or (iii) violate any provision of law applicable to DTR,
the violation of which is likely to have a material adverse
effect on the business, operations or condition (financial or
otherwise) of DTR or the Company.
(c) DTR has or will have at the time of contribution,
full legal right to transfer and assign all rights and properties
to be contributed to the Company as Capital Contributions
pursuant to the terms of this Agreement (including the Original
Agreement), free and clear mortgage, pledge, claim, lien charge,
obligation, liability (including liability for taxes) or other
encumbrances, and the Company will receive full legal and
beneficial title to all such rights and properties.
ARTICLE XII
INDEMNIFICATION
12.1 Extent of Responsibility for Damages. Each Member
shall indemnify and hold harmless the other Member for losses,
claims, damages, liabilities, including without limitation
reasonable legal and other expenses incurred in connection with
investigating any loss, claim, damage or liability, that such
Member may incur or suffer by reason of (i) any inaccuracy in any
representation or the breach of any warranty made by the Member
hereunder, or (ii) the failure of such Member to fully perform or
observe any term, provision, covenant, agreement to be performed
under this Agreement.
12.2 Indemnification of Members and Directors. The Company
shall indemnify and hold harmless each Member and its Affiliates
and each Director (each an "Indemnified Person") against any and
all losses, claims, damages, expenses and liabilities of any kind
whatsoever that such Indemnified Person may at any time become
subject to or liable for by reason of the formation, operation,
or termination of the Company, or the Indemnified Person acting
as a Member or Director of the Company, or the authorized actions
of such Indemnified Person in connection with the conduct of the
affairs of the Company, provided that no Indemnified Person shall
be entitled to indemnification to the extent that liability
otherwise indemnified for results from (i) any act or omission of
such Indemnified Person that involves actual fraud or willful
misconduct, or (ii) any transaction from which such Indemnified
Person derived improper personal benefit.
12.3 Limitation of Liability. No Member shall have any
personal liability whatsoever to the Company or any other Member
on account of such Member's status as a Member or by reason of
such Member's acts or omissions in connection with the conduct of
the business of the Company; provided, however, that nothing
contained herein shall protect any Member against any liability
to the Company or the Members to which such Member would
otherwise be subject by reason of (i) any act or omission of such
Manager that involves actual fraud or willful misconduct or (ii)
any transaction from which such Member derived improper personal
benefit.
ARTICLE XIII
GENERAL PROVISIONS
13.1 Limitation on Liability. The debts, obligations, and
liabilities of the Company, whether arising in contract, tort, or
otherwise, shall be solely the debts, obligations, and
liabilities of the Company, and no Member of the Company shall be
obligated personally for any such debt, obligation, or liability
of the Company solely by reason of being a Member.
13.2 Tax Treatment. It is the intention of the Members that
the Company shall be taxed as a "partnership" for federal, state,
local, and foreign income tax purposes. The Members agree to
take all reasonable actions, including the amendment of this
Agreement and the execution of other documents, as may reasonably
be required in order for the Company to qualify for and receive
"partnership" treatment for federal, state, local, and foreign
income tax purposes.
13.3 Cooperation. The parties hereto shall in good faith
undertake to perform their obligations under this Agreement.
Upon execution of this Agreement and thereafter, each party shall
do such things as may be reasonably requested by the other party
hereto in order to more effectively carry out the intent of this
Agreement.
13.4 Notices. Except as otherwise provided in this
Agreement, any and all notices, consents, waivers, directions,
requests, votes or other instruments or communications among the
Members, Member representatives and the Company under this
Agreement shall be communicated and be effective only if the
original is sent in writing by hand or by registered mail, and a
copy is sent by telex or facsimile. Any notice so given shall be
deemed to have been received as of the date the original is
received, or as of the date on which a copy was sent by telex or
facsimile and a confirmation of receipt indicated on the sending
telex or facsimile machine, whichever is earlier.
13.5 Applicable Law. This Agreement shall be governed by
and interpreted in accordance with the substantive law of the
State of Delaware. The Company shall be governed by and operate
in accordance with the applicable legislation of Delaware.
13.6 Severability. In case one or more of the provisions
contained in this Agreement, or any application thereof, shall be
invalid, illegal or unenforceable in any respect under applicable
law, the validity, legality and enforceability of the remaining
provisions contained therein and any other application thereof
shall not be affected or impaired in any way.
13.7 Entire Agreement. This Agreement sets forth the entire
agreement among the Members relating to the subject matter
contained herein and shall create binding rights and obligations
of the Members, and between the Members and the Company. All
other prior agreements or understandings, both written and oral,
are of no further force or effect. This Agreement shall not be
amended or replaced except by unanimous written agreement of the
Members.
13.8 Headings. The headings contained in this Agreement are
for convenience only and shall not be used to construe or
interpret the substantive meaning or intent of any provision
thereof.
13.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which is an original but all of which
shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be signed in four (4) originals on the date first
written above.
FOR AND ON BEHALF OF:
DEVELOPED TECHNOLOGY RESOURCE, INC.
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President
FOR AND ON BEHALF OF:
API DAIRY PARTNERS L.P.
By Agribusiness Holding Company L.L.C.
its general partner
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
FOR AND ON BEHALF OF:
AGRIBUSINESS PARTNERS INTERNATIONAL ▇.▇. ▇▇
By C.I.S. Management Company L.L.C.
its general partner
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President