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EXHIBIT 2.2
FIRST AMENDMENT TO
MEMBERSHIP INTEREST PURCHASE AGREEMENT
AND RECAPITALIZATION AGREEMENT
This First Amendment to Membership Interest Purchase Agreement and
Recapitalization Agreement (this "First Amendment") is made as of February 20,
1998, by and among LOS Holdings, Inc., a Delaware corporation ("LOS Holdings"),
Dairy Farmers of America, Inc., a Kansas cooperative marketing association
formerly named Mid-America Dairymen, Inc. ("DFA"), DFA Investment Company, a
Kansas cooperative marketing association ("DFA Investment"), and LOS Dairies,
Inc., a Nevada corporation ("LOS Dairies").
RECITALS
A. Suiza Foods Corporation ("Suiza"), DFA, DFA Investment and
Land-O-Sun Dairies, Inc. ("LOS Inc.") entered into that certain Membership
Interest Purchase Agreement and Recapitalization Agreement dated as of January
31, 1998 (the "Agreement").
B. Pursuant to the terms and provisions of the Agreement, Suiza
has assigned its rights under the Agreement to LOS Holdings and LOS Inc. has
assigned its rights under the Agreement to LOS Dairies.
C. The parties hereto desire to amend the Agreement as
hereinafter provided.
NOW THEREFORE, the parties hereto agree as follows:
1. Amendment to Section 2.2 of the Agreement. Section 2.2 of the
Agreement is hereby amended in its entirety to read as follows:
"2.2 PURCHASE PRICE PAYABLE TO LOS DAIRIES. The purchase
price to be paid by Buyer to LOS Dairies for the Interests of
LOS Dairies will be (a) $118,433,500 if the Closing occurs
prior to May 4, 1998 and (b) $110,433,500 if the Closing
occurs on May 4, 1998 or thereafter."
2. Amendment to Section 5.3 of the Agreement. Section 5.3 of the
Agreement is hereby amended in its entirety to read as follows:
"5.3 NEGATIVE COVENANT. Except as otherwise expressly
permitted by this Agreement, between the date of this
Agreement and the Closing Date, Sellers will not, and will
cause the Company not to, without the prior consent of Buyer,
take any affirmative action, or fail to take any reasonable
action within their or its control, as a result of which any
of the changes or events listed in Section 3.13 will occur;
provided, however, (a) that Sellers may amend the Operating
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Agreement to permit Tax Distributions to be made to DFA in
accordance with Section 5.5 and (b) the Company may make a
payment of up to $1,000,000 in the aggregate to Jarold Glick
and Michael G. Jackson, for consulting services rendered by
them to the Company in connection with securing raw fluid milk
for the Company for the Company's plants at Kingsport,
Tennessee and Spartanburg, South Carolina.
3. Confirmation of the Agreement. Except as modified by this
First Amendment, the parties hereto acknowledge and confirm the terms and
conditions of the Agreement and agree that the Agreement as modified by this
First Amendment remains in full force and effect and is binding on the parties
hereto.
4. Counterparts. This First Amendment may be executed in one or
more counterparts, each of which will be deemed to be an original copy of this
First Amendment and all of which, when taken together, will be deemed to
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this First
Amendment as of the date first written above.
LOS HOLDINGS, INC.
By: /s/ TRACY L. NOLL
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Its: Vice President
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DFA INVESTMENT COMPANY
By: /s/ JANICE C. GEORGE
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Its: Vice President
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DAIRY FARMERS OF AMERICA, INC.
By: /s/ GARY HANMAN
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Its: Vice President
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LOS DAIRIES, INC.
By: /s/ ALLEN A. MEYER
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Its: Chief Executive Officer
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