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EXHIBIT 99.2
ASSET PURCHASE AGREEMENT
Dated October 18, 1999
among
SFFI COMPANY, INC.,
XXX XXXXXXXXX, as guarantor,
XXX XXXXXXXXX CHILDREN'S TRUST - 1972
THE UNIMARK GROUP, INC.
and
SIMPLY FRESH FRUIT, INC.
To Be Effective as of October 2, 1999
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ASSET PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of this 18th day of October
1999, is entered into by and among SFFI Company, Inc., a California corporation
(the "Buyer"), Xxx Xxxxxxxxx (the "Guarantor"), the Xxx Xxxxxxxxx Children's
Trust - 1972 (the "Children's Trust"), the UniMark Group, Inc. ("UniMark") and
Simply Fresh Fruit, Inc., a California corporation ("Seller").
WITNESSETH:
WHEREAS, Seller owns all of the assets described in Section 1.1 of this
Agreement and listed on Exhibits 1.1(a)-(h) attached hereto (collectively, the
"Assets"), and Seller desires to sell such Assets to Buyer on the terms and
conditions set forth in this Agreement; and
WHEREAS, Seller leases the real property and improvements described in
Section 1.1(g) of this Agreement and more fully described on Exhibit 1.1(g)
attached hereto (the "Real Property") and Seller desires to assign its interest
in such Real Property to Buyer;
WHEREAS, Buyer desires to purchase the Assets and Seller's interest in
the Real Property on the terms and conditions set forth in this Agreement; and
WHEREAS, the Guarantor and the Children's Trust own an interest in
Buyer;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements, covenants, representations and warranties herein contained, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
SALE AND PURCHASE OF THE ASSETS
1.1 Sale and Purchase of Assets. At the Closing (as hereinafter
defined), subject to the terms and conditions herein set forth, and on the basis
of the representations, warranties and agreements herein contained, Seller shall
sell to Buyer, and Buyer shall purchase from Seller, all of Seller's interest in
and to the following described assets and real property, free and clear of all
liens, claims, restrictions and encumbrances of any nature, except as otherwise
set forth in Section 1.2 hereof:
(a) All customer and vendor contracts, personal property
leases, licenses, permits and other agreements or commitments related
to the operation of the business of Seller as listed on Exhibit 1.1(a)
attached hereto;
(b) All tangible personal property, including without
limitation, all equipment, furniture, fixtures, machinery, vehicles,
spare parts, leasehold improvements, supplies, and
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other personal property used in the business of Seller as listed on
Exhibit 1.1(b) attached hereto; save and except, Seller's inventory
only part of which is being acquired by the Buyer in accordance with
Section 1.1(h) below;
(c) All books, documents and records relating to the business
of Seller excluding only the minute book, corporate seal and stock
records of Seller and including customer records and lists, marketing
and sales records and literature, employee records and information,
accounting books and records, and insurance records;
(d) All intangible or intellectual property of Seller,
including all rights in and to the name "Simply Fresh Fruit, Inc." and
all patents, copyrights, trade names, trademarks or service marks owned
by Seller as listed on Exhibit 1.1(d) hereto;
(e) All prepaid expenses, deposits, prepaid taxes and other
monies and securities, relating to the business of Seller as listed on
Exhibit 1.1(e) attached hereto;
(f) All insurance proceeds arising in connection with damage
to the Assets or relating to the business of Seller occurring prior to
the Closing;
(g) Seller's leasehold interest in that certain real property
and improvements in the name of Seller located at the address set forth
in Section 1.6, and more fully described on Exhibit 1.1(g) attached
hereto; and
(h) That portion of the Seller's inventory specifically listed
on Exhibit 1.1(h) attached hereto (the "Acquired Inventory").
1.2 Assumption of Liabilities. Buyer agrees to assume at Closing the
liabilities specifically listed on Exhibit 1.2 hereto and the liabilities known
to the shareholders of Buyer and not disclosed to, or known by Seller
(collectively, the "Assumed Liabilities"). Except for the Assumed Liabilities,
Buyer shall not assume, shall not be deemed to have assumed, and shall not be
liable for any liabilities and obligations (whether absolute, accrued,
contingent, direct, indirect, due or becoming due, or otherwise) of Seller
existing, arising out of or in any way connected with the conduct of its
business prior to the Closing Date (as defined in Section 7.1), or the sale by
Seller of the Assets to Buyer, including, without limitation, (i) any and all
claims of persons employed by Seller prior to the Closing Date, (ii) any and all
liability of Buyer arising as a result of the failure of Seller to file any tax
returns or to pay any income, sales, excise or other taxes, employment or
workers' compensation payments, and (iii) any and all losses, liabilities,
damages or expenses resulting from the assertion of claims made against the
Assets by creditors of Seller as a result of the failure to comply with any bulk
sales law.
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1.3 Purchase Price and Terms. The total purchase price for the Assets
and the Real Property (the "Purchase Price") shall be payable as follows:
(a) by delivering $666,667 in immediately available funds on the
Closing Date;
(b) by executing and delivering a 90 day non-interest bearing
secured note in the original principal amount of $1,569,001,
in substantially the same form as Exhibit 1.3(b)(i) hereto
(the "90 Day Note"). The note shall be secured by the Assets
in accordance with the terms of the security agreement in
substantially the same form as Exhibit 1.3(b)(ii) hereto (the
"Asset Security Agreement") The note shall be guaranteed by
the Guarantor in accordance with the guaranty agreement in
substantially the same form as Exhibit 1.3(b)(iii) hereto (the
"Guaranty Agreement"); and
(c) by executing and delivering a four year secured note in the
original principal amount of $1,100,000, in substantially the
same form as Exhibit 1.3(c) hereto (the "Four Year Note"). The
note shall bear interest at 8% per annum, with interest and
principal payable in quarterly installments during the first
year and in monthly installments during the second, third and
fourth years. The note shall be secured by the Assets in
accordance with the Asset Security Agreement. The note shall
be guaranteed by the Guarantor in accordance with the Guaranty
Agreement.
1.4 Transfer of UniMark Shares. At the Closing, 68,182 shares of Common
Stock, par value $.01 per share, of The UniMark Group, Inc., a Texas corporation
("UniMark"), shall be transferred by the Children's Trust to UniMark.
1.5 Assumption of Non-compete Payments. At the Closing, Buyer shall
assume all remaining non-compete payments to the Children's Trust under that
certain Non-compete Agreement among UniMark, the Guarantor and the Children's
Trust, the aggregate amounts of such payments attached hereto as Exhibit 1.5.
1.6 Release of Earthquake Retrofit Obligations. At the Closing, UniMark
shall pay to Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxx, Trustees of The Xxxxxxx Family
Trust, Dated January 26, 1989, 0000 Xxxxx Xxxx, Xxxxxx, XX, 00000 (the
"Landlord"), the landlord of Seller's facility located at 0000 X. 00xx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx (the "Facility"), approximately $32,000 for earthquake
retrofit of such Facility in exchange for UniMark, Seller's and Buyer's full
release from all liabilities under that certain Lease Agreement between Landlord
and Seller. In addition, the Closing of the transaction shall be expressly
conditioned upon a release by Landlord of both Buyer and Seller of all further
earthquake retrofit obligations pertaining to the Facility.
1.7 Accounting Capability. Prior to Closing, Seller agreed to provided
Buyer with certain stand-alone accounting capability (including hardware and
software).
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1.8 Non-competition Agreement. At the Closing, Buyer and Seller will
enter into a non-competition agreement, in substantially the same form as
Exhibit 1.8 hereto (the "Non-competition Agreement").
1.9 Instruments of Conveyance and Transfer. At the Closing, Seller
shall execute and deliver to Buyer bills of sale and assignments and such other
instruments of conveyance and transfer, in form and substance satisfactory to
Buyer and its counsel, as shall be reasonably necessary or appropriate to vest
in Buyer good and indefeasible title to the Assets and to comply with the
purpose of this Agreement.
1.10 Transaction Taxes and Other Closing Costs. Any sales, use,
transfer or similar taxes and any assumption, recording and other similar fees,
arising in connection with the transfer of the Assets from Seller to Buyer shall
be borne solely by the Buyer.
1.11 Assumption of Non-compete Payments. At the Closing, Buyer shall
deliver to Seller an opinion of counsel in form acceptable to Seller and its
counsel.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF SELLER
In order to induce Buyer to enter into this Agreement and to consummate
the transactions contemplated herein, Seller and UniMark hereby represent and
warrant, as of the date hereof and as of the Closing Date as follows:
2.1 Corporate Existence and Authority. Seller is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and have all requisite corporate power, licenses,
permits and authority to own and lease its properties and assets and to carry on
its business as has been and is being conducted currently. Seller is qualified
to do business in every jurisdiction in which the character and location of the
assets owned or leased by Seller or the nature of the business transacted by
Seller makes such qualification necessary.
2.2 Authorization and Effect of Agreement. Seller has all requisite
power and authority to execute, deliver and perform their obligations under this
Agreement, and the Asset Security Agreement, and the Non-competition Agreement,
and the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite corporate and shareholder action. The execution and delivery of
this Agreement and the consummation of the transactions contemplated herein do
not and will not:
(a) violate, conflict with, modify or cause any default under
or acceleration of (or give any party any right to declare any default
or acceleration upon notice or passage of time or both), in whole or in
part, of any articles of incorporation, bylaws, mortgage, lien, deed
of
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trust, lease, agreement, instrument, order, decree, judgment, law or
any other restriction of any kind to which Seller is a party or by
which it or any of its properties are bound;
(b) result in the creation of any security interest, lien,
encumbrance, adverse claim or restriction on any property or asset of
Seller; or
(c) violate any law, rule or regulation of any federal or
state regulatory agency.
2.3 Title; Leased Assets. Upon consummation of the transactions
contemplated hereby, Buyer shall receive good, valid and marketable title to the
Assets, and will be entitled to use, as Lessee, all leased assets used in
Seller's business, free and clear of all liens, claims and encumbrances other
than those securing the liabilities to be assumed pursuant to Section 1.2 above.
2.4 Brokers and Finders. There is no agent's, broker's or finder's fee
or commission payable in connection with the transaction contemplated hereby by
virtue of or resulting from any action or agreement by Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
In order to induce Seller to enter into this Agreement and to
consummate the transactions contemplated herein, Buyer hereby represents and
warrants to Seller as follows:
3.1 Organization and Capitalization of Buyer. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to consummate the transactions contemplated hereby.
3.2 Authorization and Effect of Agreement. The execution and delivery
of this Agreement and the consummation of the transactions contemplated herein
have been duly authorized and approved by the Board of Directors and the
shareholders of Buyer. No further corporate approvals or authorizations on the
part of Buyer are necessary to authorize the consummation of the transactions
contemplated herein. This Agreement, the 90 Day Note, the Four Year Note and the
Asset Security Agreement, have been duly executed and delivered by Buyer and
constitutes the valid and binding obligation of Buyer, enforceable in accordance
with their respective terms.
3.3 Consents and Approvals. Except as shall have been obtained prior to
Closing, no filing with, and no permit, authorization, consent or approval of,
any public body or authority is necessary for the consummation by Buyer of the
transactions contemplated hereby. The execution and delivery of this Agreement,
and the consummation by Buyer of the transactions contemplated hereby, will not
conflict with any provisions of the Articles of Incorporation or Bylaws of
Buyer, and will not violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Buyer.
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3.4 Brokers and Finders. Buyer represents and warrants that there is no
agent's, broker's or finder's fee or commission payable in connection with the
transactions contemplated herein by virtue of or resulting from any action or
agreement by Buyer.
3.5 Commitments and Contracts. Buyer represents and warrants that (1)
Xxxx Xxxxxx and Xxxxx Xxxxxx, two executive officers of Buyer, and Xxxxx Xxxxx,
Vice President -- Foodservice of UniMark Foods, Inc., have been the primary
operating officers of Seller, and as such, have superior knowledge of the
business and affairs of Seller, and (2) to the best of Buyer's knowledge, except
as described on Exhibit 3.5 attached hereto, as of the date hereof, Seller is
not a party to or bound by any oral or written (a) contract for the employment
of any officer or employee that is not terminable on notice of thirty (30) days
(or less) without payment of any amount on account of such termination; (b)
bonus, deferred compensation, savings, stock option, retirement, pension, profit
sharing or xxxx xxxxx pay agreement, plan or arrangement; (c) agreement,
contract or indenture relating to the borrowing of money involving an aggregate
unpaid balance of one thousand dollars ($1,000) or more; (d) guaranty of any
obligation for the borrowing of money or otherwise, excluding endorsements made
for collection; (e) management agreement, consulting or other similar contract
or arrangement; (f) collective bargaining agreement; (g) agreement with any
present or former officer, director or shareholder; (h) license, whether as
licensor or licensee; (i) contract or commitment for the purchase of materials
or supplies or for the performance of services over a period of more than sixty
(60) days not in the ordinary course of business; (j) contract or commitment to
make capital expenditures in excess of $500 in the aggregate; (k) contract or
option to purchase or sell any real property; (l) consent decree; or (m) other
contract, agreement or other commitment that is material to the business,
operations, prospects, properties or assets or to the condition, financial or
otherwise, of Seller. Except as disclosed on Exhibit 3.5 attached hereto, to the
knowledge of Buyer as of the date hereof, Buyer is not aware of any basis for
the termination or cancellation of any such contracts other than the stated
expiration thereof. As of the date hereof, all of the contracts commitments and
agreements to which Seller is a party are in full force and effect without any
default or breach thereof in any material respect by Seller or any other party
thereto.
3.6 Litigation and Proceedings. Buyer represents and warrants that, to
the best of Buyer's knowledge, except as set forth on Exhibit 3.6 attached
hereto, (a) there are no actions, suits or pro ceedings pending or threatened
and there are no claims against or affecting Seller or its properties or assets,
at law or in equity or before or by any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind, that involve the possibility of any judgment or
liability that may result in any material adverse change in the operations,
properties, or assets or in the condition, financial or otherwise, of Seller
business, and (b) Seller is not in default under or in violation of any
judgment, order, writ, injunction, decree or award of any court, arbitrator or
governmental department, commission, board, bureau, agency or instrumentality.
3.7 Governmental Authorizations. Buyer represents and warrants, to the
best of Buyer's knowledge, that Seller has all licenses, franchises, permits and
other governmental authorizations that are legally required to enable it to
conduct its business in all respects as conducted on the date hereof.
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Buyer represents and warrants, to the best of Buyer's knowledge, that Seller is
in compliance with all applicable federal, state and local laws, rules and
regulations, including, without limitation, those imposing taxes; and the
execution, delivery and performance of this Agreement, and the consummation by
Seller of the transactions contemplated hereby, will not violate in any material
respect any provisions of, or constitute a default under, any applicable
judgment, order, writ, injunction, decree or award, of any court, arbitrator or
governmental department, commission, board, bureau, agency or instrumentality.
3.8 Liabilities. Buyer represents and warrants that, to the best of
Buyer's knowledge, except as reflected in the Financial Statements or disclosed
on Exhibit 3.8 attached hereto, Seller has no liabilities or obligations,
whether absolute, accrued, contingent, direct, indirect, due or becoming due, or
otherwise.
3.9 Full Disclosure. No representation or warranty made by Buyer in
this Agreement and no documentation or certification furnished or to be
furnished to Seller pursuant to this Agreement contains contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein not misleading.
3.10 Guarantor's Authorization and Effect of Agreement. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein have been authorized and approved by the Guarantor. This
Agreement has been duly executed and delivered by the Guarantor and constitutes
the valid and binding obligation of the Guarantor, enforceable in accord ance
with its terms.
3.11 Authorization of Trust to Transfer Stock. The certificate or
certificates representing the 68,182 shares of UniMark Common Stock owned by the
Children's Trust are held by the Children's Trust free and clear of any liens or
encumbrances and have been duly endorsed, under the authority of the Trustee,
for transfer to UniMark.
ARTICLE IV
COVENANTS OF SELLER AND THE SHAREHOLDER
Seller hereby covenants and agrees with Buyer as follows:
4.1 Conduct of Business. Prior to the Closing Date, Seller shall
conduct its business only in the ordinary course consistent with present
business practices and policies and shall use all reasonable efforts to (a)
preserve intact its present business organization and relationships, (b)
maintain and keep the Assets and the Real Property in good repair and condition
except for deterioration due to ordinary wear and tear, (c) maintain in full
force and effect insurance comparable in amount and in scope of coverage to that
now maintained, (d) pay and perform, when due, all material obligations under
contracts, leases and documents relating to or affecting the assets, properties
and business of Seller, and (e) comply with and perform all material obligations
and duties
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imposed by federal, state and local laws, and all rules, regulations and orders
imposed by federal, state or local governmental authorities.
4.2 Access to Properties and Records. Between the date of this
Agreement and the Closing Date, Seller shall afford to the officers and
authorized representatives of Buyer full access during normal business hours to
the properties, books and records (including tax returns filed and those in
preparation) of Seller in order that Buyer may have full opportunity to make
such investigation as it shall desire of the affairs and business of Seller, and
Seller's officers shall furnish Buyer and its representatives with such
additional financial and operating data and other information relating to the
business and properties of Seller as Buyer shall from time to time reasonably
request.
ARTICLE V
COVENANTS OF BUYER
Buyer hereby covenants and agrees with Seller as follows:
5.1 Efforts. Buyer will use its best efforts to obtain from all third
parties approvals necessary for the consummation of the transactions
contemplated by this Agreement.
5.2 Approvals and Consents. Buyer will obtain all consents, approvals
and authorizations of, filings and registrations with, and notifications to, all
applicable governmental authorities, licensors or other parties required for the
consummation of the transactions contemplated by this Agreement shall have been
duly obtained or made in form and substance reasonably satisfactory to the
parties hereto and shall be in full force and effect.
5.3 Third Party Consents. Buyer shall have received all consents of
third parties requested by Buyer pursuant to this Agreement or required to
consummate the transactions in accordance with this Agreement, including without
limitation, the transfer and assignment to Buyer of the Assets and the Real
Property and all assumed liabilities with the modifications requested by the
Buyer.
ARTICLE VI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
6.1 Survival of Representations and Warranties. The representations and
warranties of the parties contained in this Agreement shall survive beyond the
Closing Date for a period of one year.
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6.2 Indemnification by Seller.
(a) Seller hereby agrees to indemnify, defend and hold
harmless Buyer against and in respect of any and all claims, demands,
losses, costs (including court costs and attorneys' fees), expenses,
obligations, liabilities, damages, including interest and penalties
that it may incur or suffer as a result or arising out of any breach of
or failure by to perform any of their respective representations,
warranties or covenants contained in this Agreement or any exhibit or
other instrument furnished or to be furnished by Seller under this
Agreement.
(b) Seller hereby agrees to indemnify, defend and hold
harmless Buyer against and in respect of any and all claims, demands,
losses, costs (including court costs and attorneys' fees), expenses,
obligations, liabilities, damages, including interest and penalties
that Buyer may incur or suffer as a result of or arising out of any
act, omission, transaction, circumstance, sale of goods or services,
state of facts or other condition which occurred or existed on or prior
to the Closing, whether or not then known, due or payable.
6.3 Indemnification by Buyer. Buyer will indemnify, defend and hold
harmless Seller against and in respect of any and all claims demands, losses,
costs including court costs and attorneys fees), expenses, obligations,
liabilities, damages, including interest and penalties that they may incur or
suffer as a result of or arising out of any breach of or failure by Buyer to
perform any of its representations, warranties or covenants contained in this
Agreement or in any schedule, certificate, exhibit or other instrument furnished
or to be furnished by Buyer under this Agreement.
ARTICLE VII
GENERAL
7.1 Closing. The closing ("Closing") of the transactions contemplated
by this Agreement shall be held at 8:30 a.m., on the Closing Date at the offices
of Jakes Jordaan, 000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, or at such
other time and place as the parties hereto may mutually agree. The Closing Date
(herein so called) shall be as soon as practicable after the time each of the
conditions set forth in Article V have been satisfied or waived by the party or
parties entitled to the benefit of such conditions, but in no event later than
October 20, 1999.
7.2 Expenses. Each of Buyer and Seller shall be responsible for all
their respective costs and expenses incurred by them in connection with the
transactions contemplated by this Agreement.
7.3 Exhibits. All statements contained in the Exhibits hereto (and any
amendments or supplements to this Agreement) shall be deemed additional
representations and warranties of Seller and Buyer.
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7.4 Amendment. This Agreement may be amended at any time by written
agreement of the parties hereto. Any of the terms or conditions of this
Agreement may be waived in writing at any time or prior to the Closing Date by
the party that is entitled to the benefits thereof.
7.5 Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) by the mutual consent in writing of Buyer and Seller;
(b) by either Buyer or Seller if the Closing Date shall not
have occurred by October 20, 1999, provided that the right to terminate
under this provision may not be asserted by a party if the failure to
consummate the transactions contemplated herein is attributable to a
breach by such party of any of its representations and warranties
contained in this Agreement or a failure of such party to fulfill its
obligations pursuant to this Agreement;
(c) by either Buyer or Seller if any court of competent
jurisdiction in the United States or other United States governmental
body shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement and such order, decree, ruling or other
action shall have become final and non-appealable; or
(d) by Buyer if there has been a material misrepresentation or
material breach on the part of Seller in the representations,
warranties and covenants of Seller set forth herein or if there has
been any failure by Seller to comply with their respective obligations
here under, or by Seller if there has been a material misrepresentation
or material breach on the part of Buyer in the representations,
warranties or covenants of Buyer set forth herein or if there has been
any failure by Buyer to comply with its obligations hereunder.
In the event of the termination and abandonment of this Agreement
pursuant to this Section 7.5, this Agreement shall forthwith become void and
have no effect, without any liability on the part of any party or its directors,
officers or shareholders (except the liability of any party for any breach of
this Agreement).
7.6 Bulk Transfer Laws. Buyer hereby waives compliance by Seller with
the provisions of any applicable Bulk Transfer Laws of any state, and Seller
warrants and agrees to pay and discharge when due all claims of creditors
asserted against Buyer by reason of such noncompliance to the extent that such
liabilities are not specifically assumed by Buyer under this Agreement. Seller
hereby indemnifies and agrees to hold Buyer harmless from, against and in
respect of (and shall on demand reimburse Buyer for) any loss, liability, costs
or expenses, including, without limitation, attorneys' fees, suffered or
incurred by Buyer by reason of the failure of Seller to pay or discharge such
claims.
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7.7 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given at the time either personally delivered or sent by certified mail, postage
prepaid, as follows:
(a) If to Seller, to:
The UniMark Group, Inc.
X.X. Xxx 000
Xxxxxxxxxxx, Xxxxx 00000
Attn: Soren Bjorn, Chief Executive Officer and President
With a copy to:
Jakes Jordaan
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
(b) If to Buyer, to:
SFFI Company, Inc.
0000 Xxxx 00xx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
With a copy to:
Attention: ___, Esq.
7.8 Public Announcements. Seller may issue any press release or
otherwise make any public statement with respect to the transactions
contemplated hereby.
7.9 Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties;
provided, however, that Buyer shall have the right to assign to one (1) or more
direct or indirect wholly-owned subsidi aries of Buyer any and all of the rights
and obligations of Buyer under this Agreement (such subsidiary assuming all of
the obligations of Buyer in connection with the transactions contemplated herein
and making representations, warranties and covenants comparable to those made by
Buyer herein).
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7.10 Miscellaneous. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one agreement. Headings contained in this Agreement
are for reference purposes only and shall not affect in any manner the meaning
or interpretation of this Agreement. This Agreement and the documents and
instruments referred to herein constitute the entire Agreement between the
parties hereto and supersedes all other understandings with respect to the
subject matter hereof.
7.11 Severability. The provisions of this Agreement shall be deemed
independent and severable, and the invalidity or partial invalidity or
unenforceability of any one (1) provision shall not affect the validity or
enforceability of any other provision.
7.12 Effective Time. The closing of the transactions contemplated
hereby shall be effective as of October 2, 1999 (the "Effective Date").
7.13 Governing Law; Binding Arbitration. This Agreement shall be
construed in accordance with the laws of the State of California. The parties
hereto agree that any dispute pertaining to this Agreement and the transactions
contemplated hereby must be submitted for binding arbitration in Los Angeles,
California, to the exclusion of courts of law, in accordance with commercial
arbitration rules in force at the time of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first above written.
BUYER:
SFFI COMPANY, INC.,
a California corporation
By:
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Xxxxxxx Xxxxxx
Title:
------------------------------
GUARANTOR:
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Xxx Xxxxxxxxx
INTERESTED PARTY:
XXX XXXXXXXXX CHILDREN'S TRUST - 1972
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Name: Xxxx Xxxxx
Trustee
UNIMARK:
THE UNIMARK GROUP, INC.
a Texas corporation
By:
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Soren Bjorn
President and Secretary
SELLER:
SIMPLY FRESH FRUIT, INC.
a California corporation
By:
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Soren Bjorn
President and Secretary
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Exhibit 1.1(a) - LIST OF CONTRACTS, LEASES AND LICENSES
A. CONTRACTS:
1. Xxxx Xxxxxx Employment Contract (attached hereto)
2. Agreement dated effective as of May 9, 1996, by and among The
UniMark Group, Inc., a Texas corporation, UniMark Foods, Inc.,
a Texas corporation and wholly-owned subsidiary of UniMark,
Xxx Xxxxxxxxx Children's Trust - 1972 and Xxxx Xxxxxxxx
relating to royalty payments for fruit processed by Simply
Fresh Fruit, Inc. using the P.E.R.C. Machine. The term of the
agreement is 10 years.
3. Retail Installment Purchase Contracts as of November 30, 1996,
between Simply Fresh Fruit, Inc. and Toyota Motor Credit for
the:
(a) SF Forklift truck (two payments of $582.63 remaining at
October 2, 1999)
(b) SF Handtruck (two payments of $170.93 remaining at
October 2, 1999)
B. LEASES:
1. STANDARD INDUSTRIAL LEASE DATED MARCH 1, 1994 (produce warehouse)
Property: 0000 Xxxx 00xx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
Lessor: Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxx, Trustees of
The Xxxxxxx Family Trust, Dated January 26, 1989
Lease term: 10 years
2. LEASE FOR ONE (1) TOSHIBA COPIER
Lessor: Copelo Capital
Lease term: 9/1/98 to 9/1/2001
3. LEASE FOR MAILING SYSTEM
Lessor: Pitney Xxxxx Credit Corporation
Lease term: 11/1/98 to 2/1/2004
C. LICENSES:
PACA License
License term: 2/18/99 to 2/18/2000
16
Exhibit 1.1(b) - LIST OF TANGIBLE PERSONAL PROPERTY
Please refer to the listing of Depreciable Assets attached hereto.
17
Exhibit 1.1(d) - LIST OF INTANGIBLE AND INTELLECTUAL PROPERTY
Trade name and trademark: Simply Fresh Fruit
Reg. No. 877,847
18
Exhibit 1.1(e) - LIST OF DEPOSITS AND PREPAID ITEMS
A. DEPOSITS
1. Xxxxx Cash Bank Account Fund with a balance of $1,847.41 as of
October 1, 1999.
2. Rent deposit in the amount of $21,000 on Standard Industrial
Lease referenced in Exhibit 1.1(a).
3. Security deposit in the amount of $490 on Toshiba Copier
referenced in Exhibit 1.1(a).
B. PREPAID ITEMS
1. Rent payment for October 1999 in the amount of $9,156 on
Standard Industrial Lease referenced in Exhibit 1.1(a).
2. Payment for October 1999 in the amount of $12,500 to Xxx
Xxxxxxxxx Children's Trust - 1972 pursuant to the
Non-competition Agreement dated as of May 9, 1996, between Xxx
Xxxxxxxxx, in his individual capacity, the Xxx Xxxxxxxxx
Children's Trust - 1972, and The UniMark Group, Inc. This
payment was made in September 1999.
3. Payment for "Unsecured Property Taxes" in the amount of $6,713
to Los Angeles County Taxes for the tax year from 7/1/99 to
6/30/2000. The amount of $8,851 was paid as estimated tax
prior to 10/2/99 (75% prepaid).
19
Exhibit 1.1(g) - LIST OF REAL PROPERTY AND IMPROVEMENTS
A. REAL PROPERTY
Seller has a leasehold interest in the property related to the Standard
Industrial Lease referenced in Exhibit 1.1(a).
B. LEASEHOLD IMPROVEMENTS
Please refer to the Capitalized Leasehold Improvements included in the
listing of Depreciable Assets attached hereto as Exhibit 1.1(b).
20
Exhibit 1.1(h) - LIST OF ACQUIRED INVENTORY
Please refer to the listing of Acquired Inventory attached hereto. The
inventory per price out physical at October 2, 1999 was $235,668.
21
Exhibit 1.2 - LIST OF LIABILITIES ASSUMED
A. VACATION AND PROPERTY TAXES
1. Vacation Accrual as of October 2, 1999:
a) Employees with over one (1) year service $ 29,526
b) Employees with less than one (1) year service 10,021
TOTAL VACATION $ 39,547
2. Accrued "Secured Property Taxes" as of October 2, 1999 $ 4,975
(Tax year runs from 7/1/99 to 6/30/2000 -- Taxes are due
50% on 11/1/99 and 50% on 2/1/2000 -- Estimated tax is
$19,900 -- Sellers share is 25%)
TOTAL LIABILITIES ASSUMED $ 44,522
B. ASSETS WITH LIENS, CLAIMS, RESTRICTIONS AND/OR ENCUMBRANCES
(As of September 30, 1999)
1. UCC Filing Number: 9700260970
Expires: 12/31/2001
Type: Financing Statement (UCC-1)
Secured Party: Toyota Motor Credit Corp.
POB 3457
Xxxxxxxx, XX 00000
2. UCC Filing Number: 9705060490
Expires: 02/19/2002
Type: Financing Statement (UCC-1)
Secured Party: Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., RaboBank
Nederland, New York Branch
000 Xxxx Xxx.
Xxx Xxxx, XX 00000
Please refer to the Financing Statement for each Secured Party attached
hereto.
22
Exhibit 1.3(b)(i) - 90 DAY NOTE
23
Exhibit 1.3(b)(ii) - ASSET SECURITY AGREEMENT
24
Exhibit 1.3(b)(iii) - GUARANTY AGREEMENT
25
Exhibit 1.3(c) - FOUR YEAR NOTE
26
Exhibit 1.5 - NON-COMPETE PAYMENTS
After Seller's October 1, 1999 payment to the Children's Trust, the
aggregate amount of all remaining non-compete payments to be paid to the
Children's Trust is $220,585.16.
27
Exhibit 1.8 - NON-COMPETITION AGREEMENT
28
Exhibit 3.5 - SELLER'S CONTRACTS
None.
29
Exhibit 3.6 - LITIGATION
None.
30
Exhibit 3.8 - ADDITIONAL LIABILITIES
None.
