EXHIBIT 2
BREWING VENTURES LLC
AMENDMENT NO. 1 TO MEMBER CONTROL AGREEMENT
THIS AMENDMENT is made as of the 15th day of August 1997, by and among
Xxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx Xxxx, Xxxx
XxXxxxx, Xxxxxx Xxxxxx and Xxxxxx X. Xxx, III (collectively, the "Members" and
individually, a "Member").
RECITALS
WHEREAS, Messrs. Wagenheim, Burdick, Xxxxxxx, Xxxx, XxXxxxx and Xxxxxx
constitute all of the current Members of Brewing Ventures LLC, a Minnesota
limited liability company (the "Company"); and
WHEREAS, the Company and Messrs. Wagenheim, Burdick, Xxxxxxx, Xxxx,
XxXxxxx and Xxxxxx entered into a member control agreement dated May 1, 1997
(the "Member Control Agreement"); and
WHEREAS, Xx. Xxx wishes to become a Member of the Company and has agreed
to participate in the further development and execution of the Restaurant
Project; and
WHEREAS, Messrs. Wagenheim, Burdick, Xxxxxxx, Xxxx, XxXxxxx and Xxxxxx
consent to the admission of Xx. Xxx as a Member of the Company and have agreed
to provide a liquidation preference to Xx. Xxx; and
WHEREAS, each of the undersigned Members wishes to enter into this
Agreement to amend the Member Control Agreement and by signing hereof consents
to all of the terms and conditions of the Member Control Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained in this Agreement, the Members agree that the following provisions
shall constitute a part of the Member Control Agreement:
SECTION 3.1 shall read as follows: The Board of Governors shall consist
of up to three (3) Governors, as determined at each annual meeting of Members;
provided, however, that each Member hereby consents to the election to the Board
of Governors of an initial third Governor by the remaining Governors. The
initial Board of Governors shall consist of Xxxxxx X. Xxxxxxxxx and Xxxxxxx X.
Xxxxxxx. The initial third Governor shall be Xxxxxx X. Xxx, III. For so long
as Xx. Xxx desires to be elected to the Board of Governors, Messrs. Xxxxxxxxx
and Xxxxxxx hereby agree to vote their Membership Interests for his reelection.
SECTION 4.1(e) shall read as follows: Each Member hereby understands
that the Board of Governors must unanimously approve the admission of additional
Members to the Company. Each Member hereby agrees with and consents to the
addition of such additional Members, and understands that the addition of other
Members, and the proportion of additional Membership Interests, will dilute each
Member's Membership Interest in the Company.
SECTION 6.2 shall read as follows: At any time after the first
anniversary of the closing of a public offering of the Common Stock of Founders
Food & Xxxxxxx Ltd. ("Founders") or the earlier termination of the Management
Agreement between the Company and Founders dated August 13, 1997, upon the
request of any Member having
Page 23 of 31 Pages
at least a twenty-five percent (25%) Membership Interest in the Company, the
Company shall liquidate. The net proceeds resulting for the liquidation of the
Company shall be applied and distributed in the following order of priority:
SECTION 6.2(c) shall read as follows: The balance of any proceeds shall
be distributed among the Members in accordance with the positive balances in
their Capital Accounts after taking into account all Capital Account adjustments
for the Company fiscal year during which liquidation occurs. However, in the
event that dissolution is caused by the failure to develop the Restaurant
Project, then the balance of any capital lawfully available for distribution
shall be distributed in the following manner: (I) $200,000 to xx. xxx and (ii)
the balance of any proceeds shall be distributed among the members other than
Xx. Xxx in accordance with the positive balances in their Capital Accounts after
taking into account all Capital Account adjustments for the Company fiscal year
during which liquidation occurs.
SECTION 7.2 shall read as follows: Any Member may Transfer all or any
portion of his Membership Interest to another Member without the consent of the
other Members and without offering such Membership Interest to the Company and
the remaining Members. Further, Xx. Xxxxxxxxx may transfer a portion of his
Membership Interest to Xx. Xxx without the consent of the other Members and
without offering such Membership Interest to the Company and the remaining
Members.
SCHEDULE 1 shall be restated as attached hereto.
Page 24 of 31 Pages
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written, or with respect to Members acquiring Membership
Interests after the date of this Agreement, on the date opposite such Member's
signature.
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxx
-------------------------------------
Xxxxxxx Xxxx
/s/ Xxxx XxXxxxx
-------------------------------------
Xxxx XxXxxxx
/s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxx, III
-------------------------------------
Xxxxxx X. Xxx, III
Page 25 of 31 Pages
AUGUST 15, 1997 SCHEDULE 1
PERCENTAGE MEMBERSHIP CAPITAL
NAME OF MEMBER INTEREST UNITS CONTRIBUTION
Xxxxxx X. Xxxxxxxxx 25.00 25.00 $250(1)
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---------------------------
Xxxxxxx X. Xxxxxxx 25.00 25.00 $250(1)
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---------------------------
Xxxxxx X. Xxx, III 25.00 25.00 $200,000
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---------------------------
Xxxxxxx X. Xxxxxxx 12.00 12.00 $120
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---------------------------
Xxxxxxx Xxxx 5.00 5.00 $50
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Xxxx XxXxxxx 5.00 5.00 $50
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Xxxxxx Xxxxxx 3.00 3.00 $30
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-------------------------- ------ ---------
Totals 100.00% 100
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(1) In addition, Messrs. Xxxxxxxxx and Xxxxxxx have also contributed the
Restaurant Project.
Page 26 of 31 Pages
