Exhibit
10.1


 


DNA DREAMFIELDS COMPANY, LLC


AMENDMENT No. 3


TO


OPERATING
AGREEMENT


 


THIS
THIRD 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, and a second
amendment of the Operating Agreement effective October 25, 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;


WHEREAS,
pursuant to section 2(B) of the Agreement, the Company’s Board of Managers has
decided that it is in the best interests of the Company that an additional Two
Million Dollars ($2,000,000) of equity contributions beyond those described in
section 2(A) of the Agreement is required to further the purposes of the
Company;


WHEREAS, Dakota and Buhler desire to make additional
equity contributions and all of the Members desire to waive their rights under
sections 2(B) and 2(C) of the Agreement relating to allowable additional
contributions and to amend certain provisions of the Agreement relating to
additional capital contributions by Dakota and Buhler, issuance of additional
Units and the percentages used to determine distributions of proceeds of the
sale of the Brand; and


WHEREAS,
the Members further desire that the amendments be effective as of November 1,
2004.


NOW,
THEREFORE, the parties hereto agree as follows:


1.             Agreement
to Make Additional Equity Contributions. 
In consideration of the amendments made herein and the immediate
issuance of nine (9) additional Units, Dakota hereby agrees to contribute One
Million Five Hundred Thousand Dollars ($1,500,000) to the Company as an
additional equity contribution immediately upon notice by the Company.  In consideration of the amendments made
herein and the immediate issuance of three (3) additional Units, Buhler hereby
agrees to contribute Five Hundred Thousand Dollars ($500,000) to the Company as
an additional equity contribution immediately upon notice by the Company.





















 


2.             Waiver
of Right to Make Additional Equity Contributions in Proportion to Units.  In consideration of the additional capital
contributions by Dakota and Buhler, each Member hereby waives the right
provided in section 2(B) of the Agreement to subscribe to additional
contributions and the right provided in section 2(C) to make additional
contributions if another Member fails to subscribe for the full number of Units
allowed under section 2(B).


3.             Amendment of Agreement.  The Members hereby agree that the Agreement
shall be amended as set forth below.  The
amendments shall be effective as of November 1, 2004.  All other terms, conditions, and provisions
of the Agreement shall continue in full force and effect.  The Members further agree that the books and
records of the Company shall reflect the impact of such amendments.


4.             Additional
Contributions and Issuance of Units. 
Section 2(B) of the Agreement, governing additional equity contributions
shall be amended by redesignating the existing language of section 2(B) as
subparagraph (i) and inserting the following subparagraph (ii):


                (ii)           Dakota
has or will contribute One Million Five Hundred Thousand Dollars ($1,500,000)
to the Company as an additional equity contribution immediately upon notice by
the Company. Exhibit A shall be amended to reflect Dakota’s additional capital
contribution and the issuance of nine (9) additional Units to Dakota.  Buhler has or will contribute Five Hundred
Thousand Dollars ($500,000) to the Company as an additional equity contribution
immediately upon notice by the Company. Exhibit A shall be amended to reflect
Buhler’s additional capital contribution and the issuance of three (3)
additional Units to Buhler.  The Section
704 Capital Accounts of Dakota and Buhler shall be credited with their
respective additional equity contributions, but neither the Company’s assets
nor the Section 704 Capital Accounts of the Members shall be revalued as the
result the additional contributions.


5.             Distributions.  Section 3(F)(ii) of the Agreement shall be
amended by the deletion of current Section 3(F)(ii) and the insertion of the
following provision:


(ii)           Distributable Cash Flow from the sale of the Brand shall
be: (a) allocated as follows: 36.36% to BNEW; 18.18% to TechCom; 25% to Dakota;
and 20.46% to Buhler; (b) distributed to the Members not later than 30 days
after the receipt of the price therefore, provided that if the price is
anything other than cash, the Company may delay distribution until such time as
the price is converted into cash.


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:

  	
  November
  2, 2004

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TechCom
  Group, LLC

  
	
   

  	
   

  	
  By:

  	
  /s/
  Jonathan Anfinsen

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
  Date:

  	
  November
  2, 2004

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Buhler,
  Inc.

  
	
   

  	
   

  	
  By:

  	
  /s/
  Beat Haeni / /s/ Anton Holenstein

  
	
   

  	
   

  	
  Title:

  	
  Corp.
  Development / Project Mgr

  
	
   

  	
   

  	
  Date:

  	
  November
  3, 2004

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dakota
  Growers Pasta Company, Inc.

  
	
   

  	
   

  	
  By:

  	
  /s/
  Tim Dodd

  
	
   

  	
   

  	
  Title:

  	
  President/CEO

  
	
   

  	
   

  	
  Date:

  	
  November
  2, 2004