Exhibit 10.1
UNIT PURCHASE
AGREEMENT
THIS UNIT PURCHASE AGREEMENT (“
Agreement ”) is entered into this 21 st day
of September, 2007, by and between Dakota Growers Pasta Company,
Inc., a North Dakota corporation (“ Buyer ”),
and TechCom Group, LLC (“TechCom”), Buhler, Inc.
(“Buhler”) and B-New, LLC (“B-New”) (each a
“ Seller ” and collectively the “
Sellers ”).
W I T
N E S S
E T H :
WHEREAS, Sellers are holders of Units (the
“ Units ”) of DNA Dreamfields Company, LLC, an
Ohio limited liability company (the “ Company
”); and
WHEREAS, Sellers desire to sell to Buyer, and
Buyer desires to purchase from Sellers, the Units held by Sellers,
upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of and in
reliance upon the representations, warranties and obligations in
this Agreement, the parties agree as follows:
1.
Definitions . When used in this Agreement, the following
terms in all of their tenses and cases will have the meanings
assigned to them below or elsewhere in this Agreement as indicated
below:
“ Affiliate ” of any Person
means any person directly or indirectly controlling, controlled by,
or under common control with, any such Person and any officer,
director, governor, or controlling person of such
Person.
“ Contract ” means any
commitment, understanding, instrument, lease, pledge, mortgage,
indenture, note, license, agreement, purchase or sale order,
contract, promise, or similar arrangement evidencing or creating
any obligation, whether written or oral.
“ Governmental Authority ”
means any federal, provincial, municipal, state, regional or local
authority, agency, body, court or instrumentality, regulatory or
otherwise, domestic or foreign, which, in whole or in part, was
formed by or operates under the auspices of any federal,
provincial, municipal, state, regional or local government,
domestic or foreign.
“ Law ” means any common law
and any federal, provincial, municipal, state, regional, local or
foreign law, bylaw, rule, statute, ordinance, rule, order or
regulation.
“ Lien ” means any lien,
charge, covenant, condition, easement, adverse claim, demand,
encumbrance, limitation, security interest, option, pledge, or any
other title defect or restriction of any kind.
“ Losses ” means any
liability, damage, deficiency, cost or expense, including
reasonable attorney, technical, engineering, laboratory, accounting
and report fees.
“ Operating Agreement ”
means the Operating Agreement of the Company dated October 31,
2003, as amended on February 9, 2004, October 25, 2004 and November
1, 2004 and as amended and restated on May 1, 2005, as in effect on
the date hereof.
“ Person ” means any
individual, corporation, partnership, association, trust or any
other entity or organization.
2.
Purchase and Sale of Units . Subject to the terms and
conditions of this Agreement, Sellers hereby agree to sell,
transfer and assign to Buyer, and Buyer hereby agrees to purchase
from Sellers, the Units held by Seller as described in Exhibit
A hereto (the Units so sold, transferred and assigned to Buyer
being the “ Purchased Units ”). Each Seller does
hereby acknowledge and agree that, notwithstanding any provisions
in the Operating Agreement to the contrary, the Company shall
continue in existence as an entity following the completion of the
purchase and sale of Units contemplated by this Agreement. Each
Seller does further acknowledge and agree that the Company shall
continue to hold all rights with respect to the “Brand”
and the licensed use of the “Technology” (as defined in
the Operating Agreement) that are granted to the Company by the
terms and conditions of the Operating Agreement and that the
transactions contemplated by this Agreement shall not in any way
reduce, impair or terminate the Company’s rights to the Brand
or the Technology as established under the Operating
Agreement.
3.
Purchase Price . In consideration of Buyer’s
purchase of the Purchased Units, Buyer shall pay each Seller an
amount equal to $37,393 per Unit (the “ Purchase Price
”) in respect of the Purchased Units of such Seller, payable
by means of wire transfer at the closing.
4.
Representations and Warranties of Seller . Each Seller,
severally and not jointly, hereby represents and warrants to Buyer,
as follows:
4.1
Purchased Units . Each Seller owns, beneficially and of
record, all right, title and interest in and to the Purchased
Units, free and clear of all Liens. At the Closing, Buyer will
acquire from Seller good and valid title to the Purchased Units,
free of all Liens. Other than the Purchased Units, Seller has no
other interest in any Units, other equity securities of the
Company, securities of the Company containing any equity features,
any right, subscription, warrant, option, conversion right or
agreement of any kind to purchase or otherwise acquire from the
Company any membership interest, interest in its Units or other
equity or any other securities of the Company of any kind.
4.2
Authority; Enforceability . Seller is duly formed or
organized and validly existing, and has the requisite power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder (including, without limitation, the power to
sell, transfer and convey the Purchased Units as provided by this
Agreement). The execution, delivery and performance of this
Agreement by Seller and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all
requisite action on the part of Seller, and no other
2
proceedings on its part are necessary to
authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed and delivered by
Seller and constitutes the valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except to
the extent that such enforceability (i) may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditors’ rights generally, and (ii) is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
4.3
Consents . Except as provided in the Operating Agreement and
except for such approvals, consents or waivers of, or filings with,
Persons or Governmental Authorities that have already been obtained
by Seller, no approval, consent or waiver of, or filing with, any
Person or Governmental Authority is required in connection with the
transactions contemplated by this Agreement or the execution,
delivery or performance by Seller of this Agreement.
4.4
No Conflicts . The execution, delivery and performance of
this Agreement by Seller and the consummation by Seller of the
transactions contemplated hereby will not conflict with or result
in any breach of, or give rise to rights of termination, amendment,
acceleration or cancellation under the provisions of any Contract
by which Seller or any of its properties is bound or affected, or
any Law to which Seller or any of its properties is subject.
4.5
Exculpation Among Sellers; Reliance on Advisors . Each
Seller acknowledges that in making its decision to sell the
Purchased Units, it is not relying upon any advice or information
from any other Seller or from any Person, including the Company or
Buyer or their respective Affiliates. Each Seller has reviewed with
such Seller’s own tax advisors the tax consequences of the
sale of the Purchased Units and the transactions contemplated by
this Agreement, and has and will rely solely on such advisors and
not on any statements or representations of the Company, Buyer or
either of their respective Affiliates. Each Seller understands that
such Seller (and not the Company or Buyer) shall be responsible for
each such Seller’s own tax liability that may arise as a
result of such Seller’s sale of the Purchased Units or the
transactions contemplated by this Agreement. Each Seller
acknowledges that Stoel Rives LLP is legal counsel to Buyer, whose
interests are in conflict with those of the Sellers, and that Stoel
Rives LLP, as counsel for Buyer, does not represent any Seller or
any Seller’s interests in connection with the sale of the
Purchased Units, and that each Seller has had the opportunity to
obtain advice from Seller’s own legal counsel regarding the
sale of the Purchased Units.
4.6
Disclosure . No representation or warranty of any Seller in
this Agreement or in any certificate, schedule, statement or other
document furnished or to be furnished to Buyer pursuant to this
Agreement or in connection with the transactions contemplated by
this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact
required to be stated
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herein or therein or necessary to make the
statements herein or therein not misleading.
5.
Representations and Warranties of Buyer . Buyer hereby
represents and warrants to Sellers, as follows:
5.1
Authority; Enforceability . Buyer is a corporation duly
organized and validly existing under the laws of the state of North
Dakota. Buyer has the requisite power and authority to execute and
deliver this Agreement and to perform its obligations hereunder,
including without limitations, the power to purchase the Purchased
Units and deliver the Purchase Price to the Sellers as provided in
this Agreement. The execution, delivery and performance of this
Agreement by Buyer and the consummation of the transactions
contemplated thereby have been duly and validly authorized by all
requisite action on the part of Buyer, and no other proceedings on
Buyer’s part are necessary to authorize
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