Exhibit 10.1


 


UNIT PURCHASE AGREEMENT


 


THIS UNIT PURCHASE AGREEMENT (“Agreement”) is
entered into this 21st 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  


 


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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 the execution, delivery
and performance of this Agreement. This Agreement has been duly executed and
delivered by Buyer and constitutes the valid and binding obligation of Buyer,
enforceable against Buyer 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).


 


5.2                                 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 Buyer, no approval, consent or waiver of, or
filing with, any Person or Governmental Authority is required in connection
with the transactions contemplated hereby or the execution, delivery or
performance by Buyer of this Agreement.


 


5.3                                 No
Conflicts. The execution, delivery and performance of this Agreement by
Buyer and the consummation by Buyer 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 Buyer or any of Buyer’s properties is bound or affected,
or any Law to which Buyer or any of Buyer’s properties is subject.


 


5.4                                 Investment
Intent. Buyer is aware that the sale of the Purchased Units to Buyer
hereunder has not been registered under applicable federal and state securities
laws. Buyer is acquiring the Purchased Units for investment only, for Buyer’s
own account and not with a view to, or in connection with, the further sale or
transfer of all or any portion thereof.


 


5.5                                 Information.
Buyer has had an opportunity to ask questions of, and receive answers from the
executive officers of the Company, concerning the business, management and
financial affairs of the Company. Buyer has had an opportunity to obtain, and
has received, any and all additional information deemed necessary


 


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by Buyer to verify
such information in order to form a decision concerning a purchase of the Purchased Units. Buyer acknowledges that in making the
decision to purchase the Purchased Units, Buyer is not relying upon any advice
from any Seller or from any Person, including the Company or Seller or their
respective Affiliates.


 


5.6                                 Disclosure. No representation or warranty of Buyer in this Agreement or in
any certificate, schedule, statement or other document furnished or to be
furnished to any Seller pursuant 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 herein or therein or necessary to make the statements
herein or therein not misleading.


 


6.                                      Closing
and Closing Deliveries.


 


6.1                                 Closing.
The consummation of the transactions contemplated hereby (the “Closing”)
will take place at such place and such time as is mutually agreeable to Buyer
and Sellers but shall occur no later than September 30, 2007 (the “Closing Date”).


 


6.2                                 Closing Procedures. At the Closing,
each Seller will deliver to Buyer against payment by Buyer of the Purchase
Price for the Purchased Units an
Assignment, in substantially the form attached hereto as Exhibit B, conveying
to Buyer all of each Seller’s right, title and interest in and to the Purchased
Units owned by such Seller. Each Seller and related party other than Buhler
shall deliver to Buyer a Non-Compete Agreement in substantiality the
form attached hereto as Exhibit C-1; and Buhler shall deliver to Buyer a
Non-Compete Agreement in substantially the form attached hereto as Exhibit C-2.


 


7.                                      Release;
Survival; Indemnification.


 


7.1                                 Release.


 


(a)                                  As
a condition to this Agreement and in consideration of the payment to be
received by each Seller, each Seller, for and on behalf of such Seller and such
Seller’s heirs, administrators, executors, successors, assigns, and Affiliates
agrees to, and hereby does, release acquit and forever discharge the Company,
its officers, governors, members, employees, agents, successors, assigns, and
Affiliates and Buyer and Buyer’s Affiliates and each and all thereof, of and
from any and all manner of action or actions, suits, claims, damages,
judgments, levies, executions, liquidated or unliquidated, fixed or contingent,
direct or indirect, which such Seller, such Seller’s heirs, administrators,
executors, successors and assigns ever had, have or ever can, shall or may have
against the Company, its officers, governors, members, employees, agents,
successors and assigns or Buyer or any of Buyer’s Affiliates related in any
manner to any state of facts or 


 


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circumstances on
or prior to the date hereof, save and except only those rights, obligations and
duties imposed and created by this Agreement and except for liabilities that
arise due to fraud committed by the Company or Buyer.


 


(b)                                 As
a condition to this Agreement and in consideration of the Purchased Units,
Buyer, for and on behalf of itself and its administrators, executors,
successors, assigns, and Affiliates agrees to, and hereby does, release acquit
and forever discharge the Company, its officers, governors, members, employees,
agents, successors, assigns, and Affiliates and Sellers and Sellers’ respective
Affiliates and each and all thereof, of and from any and all manner of action
or actions, suits, claims, damages, judgments, levies, executions, liquidated
or unliquidated, fixed or contingent, direct or indirect, which Buyer, Buyer’s
heirs, administrators, executors, successors and assigns ever had, have or ever
can, shall or may have against the Company, its officers, governors, members,
employees, agents, successors and assigns or Sellers or any of Sellers’
respective Affiliates related in any manner to any state of facts or
circumstances on or prior to the date hereof, save and except only those
rights, obligations and duties imposed and created by this Agreement and except
for liabilities that arise due to fraud committed by the Sellers.


 


7.2                                 Survival
of Representations and Warranties. All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and the sale and purchase of the Purchased Units and
payment therefore for a period of three (3) years. All statements contained in
any certificate, instrument or other writing delivered by or on behalf of any
party pursuant to this Agreement or in connection with or in contemplation of
the transactions herein contemplated shall constitute representations and
warranties by such party hereunder.


 


7.3                                 Indemnification
by Seller. From and after the Closing, each Seller will indemnify Buyer and
Affiliates of Buyer against and hold them harmless from:


 


(a)                                  Representations.
All Losses resulting from or arising out of any inaccuracy in or breach of any
representation and warranty by Seller herein;


 


(b)                                 Covenants.
All Losses resulting from or arising out of any breach or nonperformance of any
covenant or obligation of Seller herein; and


 


(c)                                  Costs. Any and all costs and expenses (including, without limitation, legal
and accounting fees) related to any of the foregoing.


 


Notwithstanding
the foregoing provisions, each Seller’s indemnification obligation pursuant to
this Section 7.3 shall not exceed the Purchase Price received by such Seller with
respect to the sale of Purchased Units to Buyer pursuant to this Agreement.


 


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7.4                                 Indemnification
by Buyer. From and after the Closing, Buyer will indemnify Seller and
Affiliates of Seller against and hold them harmless from:


 


(a)                                  Representations.
All Losses resulting from or arising out of any inaccuracy in or breach of any
representation or warranty by Buyer herein;


 


(b)                                 Covenants.
All Losses resulting from or arising out of any breach or nonperformance of any
covenant or obligation of Buyer herein; and


 


(c)                                  Costs.
Any and all related costs and expenses (including, without limitation, legal
and accounting fees) related to any of the foregoing.


 


Notwithstanding
the foregoing provisions, the Buyer’s aggregate indemnification obligation
pursuant to this Section 7.4 shall not exceed the aggregate Purchase Price paid
by the Buyer with respect to the purchase of Purchased Units from the Sellers
pursuant to this Agreement, and the Buyer’s indemnification obligation pursuant
to this Section 7.4 to each of the Sellers shall not exceed the portion of the
aggregate Purchase Price paid to such Seller by the Buyer.


 


8.                                      Miscellaneous.


 


8.1                                 Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if signed by the respective Person giving such
notice or other communication (in the case of any corporation the signature
shall be by an authorized officer thereof) (i) when delivered personally, (ii)
one (1) business day following deposit
with a nationally recognized overnight delivery service, (iii) transmitted by
confirmed facsimile if sent during normal business hours of the recipient, if
not, then on the next business day, (iv) two (2) business days after being deposited
in the United States mail in a sealed envelope, postage prepaid, return receipt
requested, addressed as follows:


 


	
  If to Buyer:

  	
   

  	
  Dakota
  Growers Pasta Company, Inc.

  One
  Pasta Avenue

  Carrington,
  ND 58421

  Facsimile:
  (701) 652-3713

  Attention: Timothy J.
  Dodd

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Ronald McFall

  Stoel Rives LLP

  100 South Fifth Street,
  Suite 1900

  Minneapolis, MN 55402

  Facsimile:
  (612) 373-8881

  



 


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  If to a Seller:

  	
   

  	
  to
  the addresses of such Seller set forth on Exhibit D or to such other
  address as may have been designated in a prior notice.

  



 


8.2                                 Binding
Effect. Except as may be otherwise provided herein, this Agreement will be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. Except as otherwise provided in this
Agreement, nothing in this Agreement is intended or will be construed to confer
on any Person other than the parties hereto any rights or benefits hereunder.


 


8.3                                 Headings.
The headings in this Agreement are intended solely for convenience of reference
and will be given no effect in the construction or interpretation of this
Agreement.


 


8.4                                 Counterparts.
This Agreement may be executed in multiple counterparts, each of which will be
deemed an original, and all of which together will constitute one and the same
document.


 


8.5                                 Governing
Law; Prevailing Party. This Agreement, including the validity hereof and
the rights and obligations of the parties hereunder, and all amendments and
supplements hereto and all waivers and consents hereunder, shall be construed
in accordance with and governed by the domestic substantive laws of the state
of Ohio without giving effect to any choice of law or conflicts of law
provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction. The parties agree that any action, suit or
proceeding in respect of or arising out of this Agreement, in validity or
performance, shall be initiated and prosecuted as to all parties and their
respective successors and assigns in the state of Ohio. Each party hereby
consents to and submits to the exercise of jurisdiction over such party’s
person by any state or federal court situated in the state of Ohio having
jurisdiction over the subject matter. Each party waives any objection based on forum non conveniens, and any objection to venue of any
action instituted hereunder. In an action to enforce a party’s rights
hereunder, the prevailing party shall be entitled to recover its cost and
expenses (including attorneys’ fees, whether or not suit is brought) from the
other party.


 


8.6                                 Further
Assurances. The parties hereto agree that each will execute and deliver to
the other any and all documents in addition to those expressly provided for
herein that may be necessary or appropriate to carry out the provisions of this
Agreement, whether prior to or at the Closing. Each Seller further agrees that,
at any time and from time to time after the Closing, each Seller will execute
and deliver to Buyer at Buyer’s expense such further assignments, certificates
or other written assurances as Buyer may reasonably request to perfect and
protect Buyer’s title to the Purchased Units or as may otherwise be required to
carry out the provisions of this Agreement.


 


8.7                                 No
Strict Construction. The language used in this Agreement will be deemed to
be the language chosen by the parties hereto to express their mutual intent,
and no


 


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rule of strict
construction will be applied against either party. The language used in this
Agreement was negotiated by all parties and no party shall be deemed to be the
drafter.


 


8.8                                 Modification.
No supplement, modification or amendment of this Agreement will be binding unless
made in a written instrument which is signed by all of the parties and which
specifically refers to this Agreement.


 


8.9                                 Entire
Agreement. This Agreement and the agreements and documents referred to in
this Agreement or delivered hereunder, including, without limitation, the
Exhibits referred to herein, are the exclusive statement of the agreement among
the parties concerning the subject matter hereof. All negotiations among the
parties are merged into this Agreement, and there are no representations,
warranties, covenants, understandings, or agreements, oral or otherwise, in
relation thereto among the parties other than those incorporated herein and to
be delivered hereunder.


 


8.10                           Individual
Obligations of Each Seller. Notwithstanding anything contained herein, each
representation, warranty, covenant and agreement of a Seller or the Sellers
herein is made by each Seller solely as to or on behalf of itself and not as to
all Sellers or any other Seller, and no Seller shall be liable or responsible
for any breach of any representation, warranty, covenant or agreement herein by
any other Seller.


 


INTENDING TO BE LEGALLY BOUND, the parties have signed
this Unit Purchase Agreement as of the date first above written.


 


	
  

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  Dakota
  Growers Pasta Company, Inc.

  
	
   

  	
   

  
	
   

  	
  /s/ Tim Dodd

  
	
   

  	
  By: Tim Dodd

  
	
   

  	
  Its:  Pres/CEO

  



 


	
  SELLERS:

  
	
   

  
	
   

  
	
  B-New, LLC

  
	
   

  
	
  /s/
  Mike Crowley

  	
   

  
	
  By: Mike Crowley

  
	
  Its:  Principal

  
	
   

  
	
   

  
	
  TechCom Group, LLC

  
	
   

  
	
  /s/
  Jon R. Anfinsen

  	
   

  
	
  By: Jon R. Anfinsen

  
	
  Its:  CEO

  
	
   

  
	
   

  
	
  Buhler, Inc.

  
	
   

  
	
  /s/
  Rene W. Steiner

  	
   

  
	
  By: Rene W. Steiner

  
	
  Its:  President

  
	
   

  
	
  /s/
  Nikles Malkus

  	
   

  
	
  By: Nikles Malkus

  
	
  Its:  CFO, VP Finance

  



 


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EXHIBIT
A


 


Number
of Units to be Sold


 


	
  Seller

  	
   

  	
  Number of Units

  
	
   

  	
   

  	
   

  
	
  B-New, LLC

  	
   

  	
  15.12

  
	
   

  	
   

  	
   

  
	
  TechCom Group, LLC

  	
   

  	
  17.56

  
	
   

  	
   

  	
   

  
	
  Buhler, Inc.

  	
   

  	
  27.00