Exhibit 6.14
AGREEMENT
THIS AGREEMENT dated as of March 1 , 1997, is between FOOD EXTRUSION,
INC. a Nevada corporation (hereinafter referred to as "Seller") and XXXXXXX
FARMS, INC., a California corporation (hereinafter referred to as "Buyer").
R E C I T A L S:
Seller is the owner of an animal food product trade name and
distribution business known as "Satin Finish" (hereinafter referred to as the
"Product"). Buyer desires to purchase and Seller desires to sell to Buyer such
trade name and animal food distribution business of the Product on the terms and
conditions hereinafter set forth.
IN CONSIDERATION of the premises, and the covenants and conditions
hereinafter set forth, the parties agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 Assets Being Purchased and Sold Hereunder. Seller agrees to sell to
Buyer and Buyer agrees to purchase from Seller the trademarked name of "Satin
Finish" (the "Trademark") related logos, all packaging design, Seller's customer
list, Seller's trademark, distributor list, all distribution rights, exclusive
production rights for animal feed products with the Satin Finish name, an 800
number (800-742-3272), all related advertising and promotional materials and all
available Satin Finish sales history information and related records (together
with the Trademark, the "Purchased Assets") upon the terms and conditions set
forth herein.
1.2 Grant of Trademark License.
(a) Seller hereby grants to Buyer, and Buyer hereby accepts,
an exclusive, worldwide license to use the Trademark in connection with the
manufacture, advertisement, marketing, distribution, sale and promotion of the
Product. Buyer shall not have the right to sublicense the use of the Trademark,
provided, however, that Buyer may sublicense the Trademark to [ ***
], In addition to the Trademark, Seller hereby grants Buyer the
exclusive right to use the other Purchased Assets until the earlier of (i)
*** Portions of this exhibit have been redacted pursuant to a confidential
treatment request.
termination of this Agreement pursuant to Section 5.1(b) hereof or (ii) transfer
by Seller to Buyer of title to the Purchased Assets pursuant to Section 2.1
hereof.
(b) Buyer acknowledges that the Trademark and the other
Purchased Assets are the exclusive property of Seller and that until all
payments have been made to Seller pursuant to Section 1.3 herein, nothing in
this Agreement shall grant to Buyer or any other person any right, title or
interest in the Trademark or the other Purchased Assets. Title to the Trademark
and the other Purchased Assets shall be transferred by Seller to Buyer upon
payment in full of the Purchase Price. Such transfer shall occur on the Closing
Date (as defined in Section 2.1 herein).
(c) Buyer acknowledges that for Seller to maintain the
validity of the Trademark, it will be necessary for Buyer to maintain records of
its use of the Trademark. Accordingly, during the term of this Agreement, Buyer
shall maintain records of its use of the Trademark. Such records shall include
samples of all uses of the Trademark.
(d) Buyer shall promptly inform Seller of any actual or
threatened litigation by or against Buyer which arises out of the use of the
Trademark. Buyer shall defend, indemnify, and hold Seller harmless from and
against any such claim of trademark infringement or unfair competition arising
from Buyer's use of the Trademark.
(e) All advertising and promotion by Buyer shall be done in
conformity with and subject to the prior written approval of Seller as to form
and content. Buyer shall submit to Seller for Seller's written approval prior to
use, samples of all advertising and promotional materials and all other items
bearing the Trademark as they relate directly to the use of the Trademark. All
such items and materials shall bear such trademark notices and legends as Seller
may specify from time to time.
1.3 Purchase Price.
(a) The purchase price shall be the sum of [ ***
] plus (i) legal fees incurred by Seller in the
preparation, negotiation and execution of this Agreement and the transactions
related thereto, up to a maximum of [ *** ], and (ii) interest on the unpaid
amount of the purchase price, calculated at [ *** ]
*** Portions of this agreement have been redacted pursuant to a confidential
treatment request
[ *** ] plus [ *** ] per annum (the "Purchase Price").
(b) All payments hereunder shall be due on the first business
day of each month at Seller's primary place of business. Buyer shall pay to
Seller the monthly royalty payments as described in subparagraph (c) below for
the first through third months of this Agreement. If the aggregate of the
payments made by Buyer to Seller for the first [ *** ] of this Agreement is
less than [ *** ], the difference between [ *** ] and the payments made by Buyer
to Seller for the first [ *** ] of this Agreement shall be pro-rated and
paid by Buyer over the next [ *** ] in addition to the payments required to
be made by Buyer to Seller pursuant to the next sentence of this Section.
Starting in the [ *** ] of this Agreement, each [ *** ] payment shall be
the greater of (i) [ *** ] per [***] in the [ *** ] of this
Agreement, [ *** ] [ *** ] in the [ *** ] of
this Agreement and [ *** ] per month
during the [ *** ] of this Agreement or (ii)
[ *** ] royalty payments as described in subparagraph (c) below.
(c) Monthly royalty payments will be [***] per [***] of Satin
Finish and/or [ *** ] labels billed by Seller to Buyer during the previous
month. Seller will deliver to Buyer monthly invoices for such products with
terms of net [ *** ]. If Seller is unable to produce the amount of product
ordered by Buyer in any given month, Buyer's payment obligation under Section
1.3(b) for such month shall be equal to [***].
(d) Buyer may pay the balance due of the Purchase Price, in
whole or in part, at anytime without any prepayment penalty.
1.4 Liabilities Assumed. Seller will be responsible for all liabilities
of the [ *** ] product arising on or before the date of this Agreement.
Buyer will be responsible for all liabilities attributable to the [ *** ]
product arising after the date of this Agreement.
1.5 Liabilities and Obligations Not Assumed. Notwithstanding anything
else in this Agreement to the contrary, Buyer shall not assume or be obligated
to pay, discharge or indemnify any party or become liable for any liabilities,
obligations or commitments of any nature of Seller, or any other individual or
*** Portions of this exhibit have been redacted pursuant to a confidential
treatment request.
entity, presently fixed and determined, contingent or otherwise, other than
those to be expressly assumed by Buyer hereunder. All liabilities and
obligations of Seller not expressly assumed shall remain liabilities of Seller,
which shall be solely liable to perform and discharge such liabilities and
obligations.
1.6 Inventory. The parties acknowledge that no inventory exists
inasmuch as Seller's supplier [ *** ] bags inventory from
supplier's stock as purchase orders by Seller are received.
1.7 Supply. Buyer recognizes that Seller has had a long-standing
relationship with [ *** ]. Buyer agrees that Seller
may satisfy its delivery obligations to Buyer under this Agreement by purchasing
its supply of inventory from [***].
1.8 Sales, Use and Other Transfer Taxes. Seller represents and warrants
to Buyer that there are no sales, use, transfer or similar taxes payable in
connection with the sale, assignment and transfer of the purchased assets and
the assumed liabilities. Buyer hereby agrees that if any such sales, use,
transfer or similar tax is imposed in connection with the sale, assignment and
transfer of the purchased assets and the assumed liabilities Buyer shall pay,
hold harmless and indemnify Seller with respect to any such taxes.
ARTICLE 2
CLOSING
2.1 Closing. The parties shall meet on or before [ *** ], at
the office of Seller for the purpose of closing this transaction (the "Closing
Date").
(a) Seller shall provide to Buyer a xxxx of sale in the form
attached hereto as Exhibit A and an assignment of Seller's trademark attached
hereto as Exhibit B. Seller shall provide Buyer the Certificate of Registration
of the trademark and it shall be [ *** ] responsibility to pay any costs
incident to the transfer of such registration.
2.2 Items Being Retained By Seller. All accounts receivable and cash on
hand in the Satin Finish business on or prior to the execution of this Agreement
will be retained by Seller.
*** Portions of this exhibit have been redacted pursuant to a confidential
treatment request.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Due Incorporation. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada.
3.2 Authorization. Seller has the corporate power and authority to
enter into this Agreement, and the execution, delivery and performance of this
Agreement have been duly authorized by all requisite corporate action. This
Agreement has been duly executed and delivered by Seller and constitutes the
valid and binding obligation of Seller, enforceable in accordance with its
terms, except as enforcement may be limited by applicable bankruptcy laws and
similar laws affecting creditors' rights generally.
3.3 Effect of Agreement. The execution, delivery and performance by
Seller of this Agreement, and the consummation of the transactions herein
contemplated, will not result in a breach of the terms of, or constitute a
default under or violation of, any law or regulation of any governmental
authority, nor will it result in a breach of the terms of, or constitute a
default under or violation of, any provision of the Articles of Incorporation or
Bylaws of Seller, or any agreement or instrument to which Seller is a party or
by which it is bound or to which it is subject. No consent of any person not a
party to this Agreement and no consent of any governmental authority is required
to be obtained on the part of Seller to permit the consummation of the
transactions contemplated by this Agreement, except such consents as shall have
been obtained by Seller on or prior to the date hereof.
3.4 Title to Assets. Seller has good and marketable title to all the
Purchased Assets, whether personal, tangible or intangible, and, on the Closing
Date, all the Purchased Assets will be free and clear of restrictions on or
conditions to transfer or assignment, and free and clear of mortgages, liens,
pledges, encumbrances, claims, conditions or restrictions. To the best of
Seller's knowledge, none of such properties, nor the operation or maintenance
thereof, violates any restrictive covenant or any provision of law. The
Purchased Assets constitute all the property now used in connection with the
Product and necessary for the conduct of the business associated with the
Product in the manner and to the extent presently conducted and operated.
3.5 Litigation and Claims. There are no claims, actions, suits,
investigations or proceedings, existing or pending or, to the knowledge of
Seller, threatened, against or affecting Seller or the Product, at law or in
equity, or before or by any governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign.
3.6 Trademark. Seller represents and warrants that: (i) Seller owns
sufficient interest in and to the trademark "Satin Finish" (the "Trademark") to
enable it to conduct the business associated with the Product as presently
conducted; (ii) to the best of Seller's knowledge, the Trademark is not being
infringed by others; (iii) all trade secrets related to the Product have been
adequately safeguarded, have not been disclosed to any third parties who are not
bound to maintain the confidentiality of such trade secrets; and (iv) the
conduct of the business associated with the Product does not infringe any
patent, copyright, trademark, trade secret, trade name or commercial name,
registered or unregistered, or other intellectual property rights of third
parties, and no claim is pending or has been made to such effect.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Due Incorporation. Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of California.
4.2 Authorization. Buyer has the corporate power and authority to enter
into this Agreement, and the execution, delivery and performance of this
Agreement have been duly authorized by all requisite corporate action. This
Agreement has been duly executed and delivered by Buyer and constitutes the
valid and binding obligations of Buyer, enforceable in accordance with its
terms, except as enforcement may be limited by applicable bankruptcy laws and
similar laws affecting creditors' rights generally.
4.3 Effect of Agreement. The execution, delivery and performance by
Buyer of this Agreement, and the consummation of the transactions herein
contemplated, will not result in a breach of the terms of, or constitute a
default under or violation of, any law or regulation of any governmental
authority, nor will it result in a breach of the terms of, or constitute a
default under or violation of, any provision of the Articles of Incorporation or
Bylaws of Buyer, or any agreement or instrument to which Buyer is a party or by
which it is bound or to which it is subject. No consent of any person not a
party to this Agreement and no consent of any governmental authority is required
to be obtained on the part of Buyer to permit the consummation of the
transactions contemplated by this Agreement, except such consents as shall have
been obtained by Buyer on or prior to the date hereof.
ARTICLE 5
EVENTS OF DEFAULT
5.1 Events of Defaults.
(a) Buyer shall be in default under this Agreement (an "Event
of Default") upon the happening, at any time, of any of the following events:
(i) Any failure to pay when due the full amount of
any amounts due hereunder and such failure to pay shall have continued for five
(5) days after the due date for such payment; or
(ii) Default in the performance of any other
obligation, representation, or warranty set forth in this Agreement and such
default shall continue unremedied for a period of thirty (30) days after notice
thereof to Buyer; or
(iii) Liquidation, termination, or dissolution of
Buyer;
(iv) The bankruptcy or insolvency of, assignment for
the benefit of creditors by, or the institution of proceedings under the
Bankruptcy Act by Buyer and filing of any involuntary petition in bankruptcy
against Buyer which is not dismissed within thirty (30) days; or
(v) The appointment of any receiver with respect to
any property by Buyer, which receiver is not removed within thirty (30) days; or
(vi) Entry of any final judgment for the payment of
money shall be entered by a court against Buyer and there shall have been a
period of thirty (30) days during which a stay of enforcement thereof shall not
be in effect or during which the same shall not have been paid, vacated,
discharged or bonded; then, and in any of such Events of Default, Seller shall
have an immediate right to pursue the remedies set forth in this Agreement.
(b) Buyer agrees that, when any Event of Default has occurred
and is continuing Seller have the right to terminate this Agreement in its
entirety. Upon such termination, Buyer agrees that it shall promptly return all
Purchased Assets in its possession and shall retain no copies or duplicates of
any such assets in written or printed form.
(c) No delay or omission of Seller to exercise any right or
power arising from any default shall exhaust or impair at such right or power or
prevent its exercise during the continuance of such default. No waiver by Seller
of any such default, whether such waiver be full or partial, shall extend to or
be taken to affect any subsequent default, or to impair the rights resulting
therefrom except as may be otherwise provided therein. No remedy hereunder is
intended to be exclusive of any other remedy but each and every remedy shall be
cumulative and in addition to any and every other remedy given hereunder or
otherwise existing.
ARTICLE 6
INDEMNIFICATION
6.1 Survival. The representations, warranties and covenants of the
parties contained in this Agreement or in any certificate or instrument
delivered pursuant hereto shall survive the Closing Date.
6.2 Indemnification.
(a) Seller agrees to indemnify, defend and hold Buyer and
Buyer's officers, directors, employees and attorneys, all affiliates and
subsidiaries harmless from and against any and all losses, damages, costs and
expenses, including attorneys' fees (any such loss, damage, cost or expense
herein called a "Loss"), which Buyer may at any time sustain or incur by reason
of: (i) any inaccuracy or breach of any of the representations, warranties or
covenants of Seller contained herein or in any certificate delivered pursuant
thereto, or (ii) any claim or claims whether or not presently known to Seller,
which arise in connection with the ownership or operation of the Product and the
Purchased Assets, where the event which gives rise to such claim occurred prior
to the date of this Agreement, or (iii) any claim or claims arising out of any
liability or obligation relating to the Purchased Assets or the business
associated therewith not assumed by Buyer under Section 1.4 hereof.
(b) Buyer agrees to indemnify, defend and hold Seller and
Seller's officers, directors, employees and attorneys, all affiliates and
subsidiaries harmless from and against any and all losses, damages, costs and
expenses, including attorneys' fees (any such loss, damage, cost or expense
herein called a "Loss"), which Seller may at any time sustain or incur by reason
of: (i) any inaccuracy or breach of any of the representations, warranties or
covenants of Buyer contained herein or in any certificate delivered pursuant
thereto, or (ii) any claim or claims whether or not presently known to Buyer,
which arise in connection with the ownership or operation of the Product and the
Purchased Assets, where the event which gives rise to such claim occurred on or
after the date of this Agreement, or (iii) any claim or claims arising out of
the failure of Buyer to discharge any of its obligations pursuant to Section 1.4
hereof.
6.3 Remedies. The indemnification provisions of Section 6.2 hereof
shall not be deemed exclusive and shall not prejudice any other rights or
remedies, at law or in equity, of Buyer or Seller under this Agreement with
respect to any matter relating to the terms, provisions, covenants or conditions
of this Agreement or any transaction contemplated hereby.
ARTICLE 7
MISCELLANEOUS
7.1 Headings. The headings of the several sections of this Agreement
are inserted for the convenience of reference only and are not intended to
affect the meaning or interpretation of this Agreement.
7.2 Counterparts. This Agreement may be executed in one or more
counterparts, and when so executed each counterpart shall be deemed to be an
original, and said counterparts together shall constitute one and the same
instrument.
7.3 Binding Nature. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
and any such successor or assignee shall be deemed substituted for such party
under the terms of this Agreement for all purposes. Notwithstanding the
foregoing, the obligations of Seller and Buyer under Article 6 may not be
assigned or transferred without the prior written consent of the other party.
7.4 Entire Agreement; Amendments. This Agreement and the Schedules and
Exhibits hereto constitute the entire agreement between the parties pertaining
to the subject matter contained herein and supersede all prior and
contemporaneous negotiations, agreements, representations, and understandings of
the parties. No supplement, modification, or amendment of this Agreement shall
be binding unless executed in writing by the party sought to be bound.
7.5 Applicable Law; Forum Selection. This Agreement shall be governed
by the laws of the State of California. Any controversy or dispute arising out
of this Agreement shall be brought in any state or federal court located within
Sacramento County of the State of California. Each party hereto consents to the
jurisdiction of any state or federal court located within Sacramento County of
the State of California and waives personal service of any and all process upon
it and consents that all such service of process be made by certified mail.
7.6 Severability. Should any provision of this Agreement be determined
to be invalid, it shall be severed from this Agreement and the remaining
provisions of the Agreement shall remain in full force and effect.
WITNESS due execution of this Agreement by the parties hereto as of the
date first set forth above.
SELLER: BUYER:
FOOD EXTRUSION, INC., XXXXXXX FARMS, INC.,
a Nevada corporation a California corporation
By /s/ X.X. XxXxxx By /s/ Win Xxxxxxx
---------------- ----------------
Xxxxxx X. XxXxxx Win Xxxxxxx
Chief Executive Officer President
Address: Address:
1241 Hawk's Flight Court 000 Xxxxx Xxxxxx Xxxxxx
Xx Xxxxxx Xxxxx, XX 00000 Xxxxxxx, XX 00000
`
EXHIBIT A
XXXX OF SALE
XXXX OF SALE
For valuable consideration, receipt of which is hereby acknowledged,
the undersigned has sold and transferred to XXXXXXX FARMS, INC., a California
corporation, all of its right, title and interest in and to the property
described on Schedule 1 attached hereto.
The undersigned does hereby warrant that said property is free and
clear of all claims and indebtedness, and does hereby warrant title to the same
as against any person or persons claiming or to claim the same.
DATED:
FOOD EXTRUSION, INC.,
a Nevada corporation
By:
Name:
Title:
STATE OF CALIFORNIA )
) ss.
COUNTY OF ___________ )
On , before me, , a Notary Public, personally appeared ________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal. (SEAL)
Notary Public
SCHEDULE 1
1. Trademark name "Satin Finish" (Reg. No. 1,803,034).
2. Related logos.
3. Related packaging design.
4. Customer list for the Satin Finish product.
5. Distributor list and all distribution rights for the Satin Finish
product.
6. All production rights for animal feed products with the Satin Finish
name.
7. Telephone number 000-000-0000.
8. Advertising and promotional materials for the Satin Finish product.
9. Satin Finish sales history information and related records.
EXHIBIT B
ASSIGNMENT OF TRADEMARK
ASSIGNMENT OF TRADEMARK REGISTRATION
WHEREAS, Food Extrusion, Inc., a Nevada corporation, with its
place of business at 0000 Xxxx'x Xxxxxx Xxxxx, Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
("Assignor"), has adopted, used, and is using the trademark "Satin Finish" (Reg.
No. 1,803,034) which is registered with the United States Patent and Trademark
Office (referred to as the "Xxxx");
WHEREAS, Xxxxxxx Farms, Inc., a California corporation, with a
place of business at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
("Assignee") is desirous of acquiring the Xxxx and the registration thereof;
NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged by Assignor, Assignor does hereby assign,
transfer and convey to Assignee all of its rights, title, and interest in and to
the Xxxx, and the registration, together with the goodwill of the business
symbolized by the Xxxx. The Commissioner of Patents and Trademarks is requested
to issue all papers in the Patent and Trademark Office in connection with the
Xxxx, to said Assignee. This Assignment is executed as of this day of
, , at El Dorado Hills, California.
"ASSIGNOR"
FOOD EXTRUSION, INC.
By:
Name:
Title:
