Exhibit 10.23


 


CONFIDENTIAL
TREATMENT REQUESTED. CERTAIN PORTIONS HAVE BEEN OMITTED AND HAVE

BEEN FILED SEPARATELY WITH THE COMMISSION.


 


DNA
DREAMFIELDS COMPANY, LLC


AMENDMENT
No. 2


TO


OPERATING AGREEMENT


 


THIS SECOND AMENDMENT TO
OPERATING AGREEMENT (the “Amendment”) is entered into between and among B-New,
LLC, an Ohio limited liability company (“BNEW”), TechCom Group, LLC, a Florida
limited liability company (“TechCom”), Buhler, Inc., a Minnesota corporation (“Buhler”),
and Dakota Growers Pasta Company, Inc., a North Dakota corporation (“Dakota”)
(BNEW, TechCom, Buhler and Dakota may be referred to herein as a “Member” and
collectively as the “Members”).


 


RECITALS


 


WHEREAS, the Members entered
into an Operating Agreement as of 
October 31, 2003, and entered into a first amendment of the Operating
Agreement effective February 9, 2004 (collectively, the “Agreement”).


 


WHEREAS, the Members are all
of the members of DNA Dreamfields Company, LLC, an Ohio limited liability
company (the “Company”), as of the date hereof; and


 


WHEREAS, the Members desire to amend certain
provisions of the Agreement relating to initial capital contributions and
allocation of deductions and losses among the Members and to clarify the
intended scope of Member liability;


 


WHEREAS, the Members further
desire that the amendments be applied both prospectively and retroactively, as
if such amendment had been included in the Agreement as originally adopted by
the Members.


 


NOW, THEREFORE, the parties
hereto agree as follows:


 


1.             Amendment.  The Members hereby agree that the following
provisions of the Agreement shall be amended in their entirety and replaced by
the applicable provisions set forth below. 
All other terms, conditions, and provisions of the Agreement shall
continue in full force and effect.  The
Members further agree that the amendment contained in this Amendment shall be
effective between and among the partners as of the date of formation of the
Company;  the
Members further agree that the books and records of the Company shall reflect
the impact of such amendment.


 





















 


2.             Allocations;
Distributions.  Sections 3(E)(i) and (ii) of the Agreement, governing the allocation of
profits and losses, shall be amended by the deletion of current Sections
3(E)(i) and (ii) and the insertion of the following provision:


 


(E)           Allocations.


 


(i)            After giving effect to the special allocation provisions
hereof, and except as set forth in subsection (ii) below, profits and losses
shall be allocated among the Members in proportion to their respective Units.


 


(ii)           Notwithstanding anything contained
herein, any gain on sale of the Brand shall be allocated as necessary so that
after reducing the Members’ respective Section 704 capital accounts by any
distribution made or to be made pursuant to Section 3(F)(ii),
and after then allocating such gain, the Members’ respective Section 704
capital account balances are in proportion to their respective Units.


 


3.             Special
Allocation of Start-up Amortization. 
Section 3(E)(iii)(h) of the Operating Agreement
shall be deleted in its entirety and 
shall have no further force and effect.


 


4.             Capital
Contributions.  Section 2(A) of the
Agreement, governing initial capital contributions shall be amended by deletion
of the current Section 2(A) and inserting of the following provision:


 


(A)          Initial
Contributions.


 


(i)            Each Member has on or before the date hereof contributed
to the capital of the Company the cash listed on Exhibit A, and has been issued
the number of membership units (“Units”) in the Company listed on Exhibit A.


 


(ii)           Buhler shall contribute, when and as needed, additional
funds as provided for in the schedule attached hereto as Exhibit B to the
Company to pay for the development of science, proof of principle, clinical
studies and credential/claims development necessary to implement the Company’s
business plan.  Such contributions shall
be made by the payment by Buhler to the Company of applicable invoices
submitted by vendors of the Company, including invoices for the management fees
provided under section 6(E)(i) and/or (ii) below, and
applicable internal costs incurred by Buhler and accounted for by Buhler to the
Board of Managers.  Buhler hereby assigns
and conveys all of its rights, title and interest in and to processing
technology specifically developed and applied for Dreamfields pasta to the
Company as a capital contribution at an agreed value of $***. Such
contributions shall be an additional capital
contributions by Buhler without the issuance of any additional Units.


 










*** - Confidential treatment
requested.


 





















 


(iii)          Dakota shall contribute, when and as needed, additional
funds as provided for in the schedule attached hereto as Exhibit B to the
Company to pay for the development of supply chain, product package
development, consumer research, test market launch and regional roll out,
advertising and merchandising necessary to implement the Company’s business
plan.  Such contributions shall be made
by the payment by Dakota to the Company of applicable invoices submitted by
vendors of the Company, including invoices for the management fees provided
under section 6(E)(i) and/or (ii) below, and
applicable internal costs incurred by Dakota and accounted for by Dakota to the
Board of Managers.  Such contribution
shall be an additional capital contribution by Dakota without the issuance of
any additional Units.


 


(iv)          B-New hereby assigns and conveys all of its rights, title and interest in
and to the Brand to the Company as a capital contribution having an agreed
value of $***. Such contribution shall be a additional
capital contribution by B-New without the issuance of any additional Units.


 


(v)           TechCom’s grant of the license to the Technology to the
Company, as more particularly described in Section 6(E)(iv), shall be treated
as a capital contribution having an agreed value of $***. Such contribution
shall be an additional capital contribution by TechCom without the issuance of
any additional Units.


 


(vi)          The agreed values of the property contributions of Buhler,
B-New and TechCom when combined with the cash contributions of Dakota and
Buhler are intended to be ***.  In the
event the combined cash contributions of Dakota and Buhler are less than the
total amount required by Exhibit B, the agreed value of the property
contributions of Buhler, B-New and TechCom shall be ***.


 


(vii)         Notwithstanding anything contained herein, if and to the
extent the Company incurs legal fees under section 6(E)(iv)(2)
of this Agreement, one or more Members may loan the needed funds to the
Company.  Such loan or loans shall bear
interest on the outstanding amount of 8% per annum, and all loaned funds, and
all accrued interest, shall be paid in full prior to any distribution to the
Members of Distributable Cash Flow.


 


5.             Liability
of Members.  The first sentence of
Section 2(D) of the Operating Agreement relating to the liability of Members
for capital contributions and loans shall be deleted in its entirety and the
intended liability limitation shall be incorporated into and clarified in the
following new sentence which shall be added at the end of Section 15(A):


 


“Except as otherwise provided in the
preceding sentence, notwithstanding anything contained herein, no Member shall
be liable under a judgment, decree, or order of a court, or in any other
manner, for the debts or any other obligations or liabilities of the Company,
nor shall any Member be required to make any capital contribution or loan to
the Company after the date hereof except as set forth in section 2(A) above,
nor shall any Member be required to restore a deficit balance in its capital
accounts or, after its capital contributions set forth in section 2(A) have
been made, to make any additional contributions, assessments, or payments to
the Company.”


 










*** - Confidential treatment
requested.


 





















 


 


6.             Counterparts.  This Amendment may be executed in
counterparts which taken together shall constitute one instrument,
notwithstanding the fact that all parties have not executed this Amendment on
the same date or that all signatures do not appear on the same copy.


 


7.             Captions.  Captions are included for convenient
reference only and shall not affect the interpretation of any provision of this
Agreement.


 


8.             Severability.  The invalidity, illegality, or
unenforceability of any provision of this Amendment shall not affect or impair
the validity, legality, and enforceability of the other provisions hereof or of
the Agreement and the Amendment and the Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were omitted.


 


*   *   *  
*   *


 





















 


IN WITNESS WHEREOF, the parties have executed
this Amendment.


 


	
   

  	
  B-New,
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Mike Crowley

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Principal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  October 25,
  2004

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TechCom
  Group, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jonathan Anfinsen

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  October 25,
  2004

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Buhler,
  Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Beat Haeni / /s/ A. Holenstein

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Corp. Development / Project Mgr

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  October 25,
  2004

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Dakota
  Growers Pasta Company, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Tim Dodd

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
  President/CEO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  October 25,
  2004