EXHIBIT 10.6
SECOND
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
FOODMASTER INTERNATIONAL L.L.C.
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT ("Agreement") is made and entered into as of
this 15th day of November, 1999 by and between (i) API DAIRY
PARTNERS L.P. ("API I") and AGRIBUSINESS PARTNERS INTERNATIONAL
X.X. XX ("API II"), both of which are limited partnerships
organized and existing under the laws of the State of Delaware,
with their principal offices at 0000 Xxxxxx Xxxxxx, Xxxxx,
Xxxxxxxx, 00000 (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 0000
Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxxx, 00000 (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, dated as of March 3, 1997, as
amended by that certain Amended and Restated Limited Liability
Company Agreement, dated as of September 11, 1998 (as amended,
the "Original Agreement"), pursuant to which API and DTR
established and operated Foodmaster International L.L.C., a
Delaware limited liability company (the "Company").
WHEREAS, API and DTR and the Company entered into that
certain Management Agreement, dated as of March 3, 1997, as
amended by that certain Amended and Restated Management
Agreement, dated as of September 11, 1998 (as amended, the
"Management Agreement");
WHEREAS, the Company and DTR are terminating the
Management Agreement effective as of the date of this Agreement;
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) "Affiliate" means, with respect to any Member, any
person or entity directly or indirectly controlling, controlled
by, or under common control with such Member, as the case may be.
(b) "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.
(c) "Dollars" means the lawful currency of the United
States of America.
(d) "GAAP" means generally accepted accounting
principles as used in the United States.
(e) "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.
(f) "Members" means API and DTR and all other persons
who may become Members of the Company as provided herein.
(g) "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 ninety-five
percent (95%) and five percent (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 Registered Office/Registered Agent. The registered
office of the Company in the State of Delaware shall be located
at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000, 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 Company shall dissolve in accordance with
the provisions of Section 7.1.
ARTICLE III
CAPITAL STRUCTURE
3.1 Capital Contributions. As of the date of this
Agreement, API has made Capital Contributions to the Company in
the amount of Twelve Million Dollars ($12,000,000) and DTR has
made Capital Contributions to the Company in the amount of Four
Million Dollars ($4,000,000).
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 or any subsidiary thereof.
3.3 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.
(b) With respect to all matters submitted to a vote of the
Members, API shall be entitled to cast seventy percent (70%) of
all votes and DTR shall be entitled to cast thirty percent (30%)
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) Unless the Board determines otherwise, 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.
Unless the Board determines otherwise, 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
by the end of the calendar month immediately following the
calendar month with respect to which the financials are prepared.
4.8 Extraordinary Actions. In addition to other actions
identified herein requiring unanimous approval of the Members,
the Company shall not, without the approval of each Member which
approval shall not be unreasonably withheld, (i) sell or
otherwise dispose of all or substantially all of its assets, or
(ii) undertake any new investment projects. For purposes of
determining the reasonableness of a Member in providing or
withholding approval under this Section 4.8, the Member shall be
permitted to take into account the impact of the proposed action
on such Member.
4.9 Interested Party Transactions. Subject to the
provisions of the following sentence, the Company shall not enter
into contract, arrangement or transaction with any Member or any
Affiliate of any Member unless such contract, arrangement or
transaction is approved by each of the Members or all of the
Directors then in office. The provisions of the foregoing
sentence shall not apply to any contract, arrangement or
transaction pursuant to which the Company reimburses a Member for
providing goods or services to the Company provided that the
amount of such reimbursement is no greater than such Member's
cost of providing such goods or services, including reasonable
overhead.
4.10 Inspection Rights. Each Member shall have the right,
at all reasonable times during usual business hours, to audit,
examine, and make copies of or extracts from any books, records,
or other papers of the Company. Such right may be exercised
through any agent or employee of such Member designated by the
Member. Each Member shall bear all expenses incurred in any
examination made by or on behalf of such Member.
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 subparagraph (b), the Percentage Interest of API
shall be seventy percent (70%) and the Percentage Interest of DTR
shall be thirty percent (30%).
(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%), DTR'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(b) shall not exceed six percent (6.0%).
(c) The adjustment of Percentage Interests pursuant to
this Section 5.2 shall not alter the voting/management provisions
contained in this Agreement.
ARTICLE VI
ADMISSION OF NEW MEMBERS/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. Except as otherwise
provided in this Agreement, 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.
6.3 Right of First Refusal. If any Member receives a bona
fide offer (an "Offer") from a third party (the "Offeror") to
sell any or all of it's Interest and that the Member wishes to
accept, such Member shall give written notice (the "Notice")
thereof to the other Member(s) no latter than the earlier of five
days after receipt or thirty (30) days prior to the date of the
proposed sale of the Interest which notice shall include all
material terms and conditions of the offer and the identity of
the Offeror. The other Member(s) shall then have the right and
option, but not the obligation, to purchase the Interest, on the
terms and conditions and on the proposed sale date set forth in
the Notice. The option provided for herein shall be exercisable
by the Member(s) within thirty (30) days after receipt of the
Notice. If the option is not exercised within the option period,
then the Member receiving the Offer shall have the right for a
period of thirty (30) days following the expiration of such
option period to sell any or all of its Interest subject to the
Offer, free and clear of the restrictions or limitations of this
Agreement; provided, however, that such sale may be only to the
original Offeror and on the same material terms and conditions
contained in the Offer; and provided further, that such Offeror
shall agree in writing to be bound by all of the terms and
conditions of this Agreement. If any or all of the Interest is
not sold pursuant to the provisions of this Section 6.3 prior to
the expiration of the thirty (30) day period specified in the
immediately preceding sentence, such Interest shall become
subject once again to the provisions and restrictions hereof.
6.4 Tag Along Right.
(a) If API proposes, in a single transaction or a
series of transactions, to sell any of its Interest, then DTR
shall have the right to join in such sale on a pro rata basis as
hereinafter provided.
(b) Prior to the sale by API of any portion of its
Interest (the "Disposition Percentage"), API shall cause the
party that proposes to acquire such Interest (the "Proposed
Purchaser") to offer (the "Purchase Offer") in writing to DTR to
purchase a portion, at least equal to the Disposition Percentage,
of DTR's Interest. Such purchase shall be made on the same terms
and conditions as the Proposed Purchaser has offered to purchase
the Interest of API. DTR shall have thirty (30) days from the
receipt of the Purchase Offer in which to accept such Purchase
Offer.
6.5. Bring Along Right.
(a) If, at any time after the date of this Agreement,
API shall determine to sell all of its Interest in a bona fide
arm's-length transaction to a third party, then, upon written
request of API, DTR shall sell, or cause to be sold, to such
third party all of the Interest owned by DTR, provided that DTR
shall not be obligated to sell its Interest pursuant to this
Section 6.5 except on terms and conditions that are no less
favorable than those pursuant to which API sells its interest,
taking into account the total consideration received by API in
the overall transaction pursuant to which API sells its interest
and reasonably attributable to API's Interest.
(b) In connection with any transaction to which Section
6.5(a) applies, API shall send written notice (the "Sale Notice")
to DTR, setting forth the terms and conditions pursuant to which
the third party purchaser will acquire API's Interest, including
the closing date of the sale, which shall be at least fifteen
(15) days following the date of the Sale Notice. Not later than
the closing date of such sale, the third party purchaser shall
deliver payment for the Interest of DTR against the receipt of
all documents reasonably requested by such third party purchaser
to transfer ownership of DTR's Interest.
6.6 Transfer of Interest. At any time after January 1,
2003, either Member will, at the request of the other Member,
cooperate, in all commercially reasonable respects, with the
requesting Member in the sale of its Interest to a third party,
subject to the provisions of Sections 6.2, 6.3 and 6.4 or
cooperate, in all commercially reasonable respects, in an initial
public offering ("IPO") of Interests in the Company.
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, or (ii) 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.
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
products in Kazakstan, Ukraine, or Moldova except through the
Company.
(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 or juice products in Kazakstan, Ukraine, or
Moldova 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.
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 had at the time of contribution, full legal
right to transfer and assign all rights and properties
contributed to the Company as Capital Contributions, free and
clear of mortgage, pledge, claim, lien charge, obligation,
liability (including liability for taxes) or other encumbrances,
and the Company has received 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
Member 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, provided that the terms of the
Original Agreement shall remain in effect with respect to periods
prior to the date of this Agreement. 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: Xxxx X. Xxxx
Title: President
FOR AND ON BEHALF OF:
API DAIRY PARTNERS L.P.
By Agribusiness Holding Company L.L.C.
its general partner
By:
Name: Xxxxxx X. Xxxxxx
Title: President
FOR AND ON BEHALF OF:
AGRIBUSINESS PARTNERS INTERNATIONAL X.X. XX
By C.I.S. Management Company L.L.C.
its general partner
By:
Name: Xxxxxx X. Xxxxxx
Title: President
