EXHIBIT 10.3
AGREEMENT AND XXXX OF SALE
This Agreement and Xxxx of Sale (the "Agreement") is entered into as
of February 28, 1995 by and between EarthShell Container Corporation, a Delaware
corporation ("ECC"), and E. Khashoggi Industries, a California general
partnership ("EKI").
WHEREAS, EKI and ECC have entered into that certain Master Lease
Agreement, dated July 31, 1993 (the "Master Lease Agreement"), providing for the
lease to EKI of certain equipment and machinery owned by ECC; and
WHEREAS, EKI desires to purchase, and ECC desires to sell, certain of
the equipment and machinery currently leased to EKI pursuant to the Master Lease
Agreement; and
WHEREAS, upon such purchase and sale, EKI and ECC desire to terminate
the Master Lease Agreement;
NOW, THEREFORE, in consideration of the premises, the terms and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. SALE OF EQUIPMENT AND MACHINERY. ECC does hereby sell, convey,
transfer, assign and deliver to EKI all of its right, title and interest in and
to all of the assets, property and rights listed on Exhibit A attached hereto
(the "Equipment"). The foregoing sale and transfer shall be effective upon the
execution and delivery of this Agreement and this Section 1 shall serve as a
xxxx of sale with respect thereto.
2. PURCHASE PRICE. The purchase price for each item of Equipment
shall be its acquisition cost as listed on Exhibit A attached hereto and the
aggregate purchase price for all items of Equipment shall be the aggregate of
all such acquisition costs (the "Purchase Price"). The Purchase Price shall be
payable by EKI to ECC by wire transfer or delivery of a certified or cashier's
check upon the earlier of (i) the consummation of a public offering of ECC
capital stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended, for the account of ECC at an aggregate
offering price in excess of $35,000,000 and (ii) June 30, 1996.
3. REPRESENTATIONS AND WARRANTIES REGARDING THE EQUIPMENT. ECC
represents and warrants that the Equipment is free and clear of any and all
liens and encumbrances or claims
of any ownership interest. ECC makes no representation or warranty, express or
implied, as to the physical condition of the Equipment, the fitness of any item
of the Equipment for the use intended, or the merchantability of any item of the
Equipment.
4. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of California applicable to
agreements made and to be performed wholly within such jurisdiction.
5. ENTIRE AGREEMENT. The Master Lease Agreement is hereby
terminated and the parties thereto shall have no further obligations thereunder.
This Agreement constitutes the entire agreement between the parties regarding
the subject matter hereof, and supersedes all prior discussions or agreements
related to the same.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed by their duly authorized representatives as of the date set forth herein.
E. KHASHOGGI INDUSTRIES,
a California General Partnership
By: E. KHASHOGGI HOLDINGS, L.P.,
its Managing General Partner
By: E. KHASHOGGI INDUSTRIES, INC.,
the General Partner of
E. Khashoggi Holdings, L.P.
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx,
President
EARTHSHELL CONTAINER CORPORATION
By: /s/ D. Xxxxx Xxxxxxx,
------------------------------------
D. Xxxxx Xxxxxxx,
Chief Financial Officer
2
EXHIBIT A
EQUIPMENT AND MACHINERY
DESCRIPTION ACQ COST
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LAB - LEASEHOLD IMPROVEMENTS:
DUV01: lab ventilation 5,332.50
INT01: exhaust system 906.40
RUD01: masonry shop 336.60
INT01: Int'l Electric / Remodel 8,087.14
ESC01: Plumbing 53,610.37
INT01: Electrical 15,744.28
PRE02: Asbestos abatement 2,960.00
OLY01: construction 9,218.17
MAN01: construction 25,883.73
DUV01: ventilation 14,333.84
SMI03: Engineering 325.00
TRI01: Blind deposit 1,000.00
SPE06: liquid hardener 145.73
CLA04: Architectural Svcs 1,625.00
WHI03 Architectural Svcs 3,042.20
SMI03: Electrical designs 325.00
INT01: Int'l Electric / Remodel 76,076.63
ESC01: plumbing remodel 73,589.04
NOR04: cabinets/shelves 16,647.02
BUE01: drier 801.66
PRE01: HVAC mounting 840.00
TRI01: mini blinds 2,654.87
OLY01: construction 11,788.58
SAN17: Exterior ceiling 1,052.00
DAH01: Insulate pipes 3,860.32
CVE01: HVAC, piping 1,737.00
COR02: painting 20,956.65
DUV01: construction 25,126.07
MAN01: construction 30,003.25
PAC02: ceiling acoustics 3,220.00
WAL04: ceiling work 7,390.00
MAC04: welding 3,703.00
SCH07: construction 1,190.00
GRA03: parking lot asphalt 3,589.00
TEL03: phones 1,093.82
SCH07: construction 660.00
MCL01: sump painting 205.93
CUR01: carpeting 809.00
WAL04: litewires 120.00
MAC04: welding 692.00
SMI03: electrical designs 775.00
WHI02: architectural 657.49
CLA04: architectural 300.00
SPE01: fabricate grid 86.20
DUV01: Xxxxxx Mechanical 1,515.50
ESC01: Escalora Plumbing 11,683.67
JOR01: cabinets 1,510.00
COR02: painting 1,394.20
MAN01: construction 3,833.74
OLY01: construction 1,250.60
OLY01: construction 985.12
EXHIBIT A
EQUIPMENT AND MACHINERY
DESCRIPTION ACQ COST
--------------------------------------------------------------------------------
CLA04: architectural 312.50
ESC01: Installation 801.82
MAN01: skylight 2,315.00
DUV01: ac units 983.00
ER #VO57 X. Xxxxx: supplies 31.19
ESC01: sewer repair 865.00
ESC01: relocate drums, etc. 2,031.47
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TOTAL LAB LEASEHOLD IMPROVEMENTS 461,800.20
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EXHIBIT A
EQUIPMENT AND MACHINERY
DESCRIPTION ACQ COST
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MACHINE SHOP FURNITURE, COMPUTERS AND EQUIPMENT
Cabinets 4,543.64
Cad System 9,952.12
486 Computer for CNC mill 2,429.77
CNC memory 3,874.75
NOV01: printer plotter 7,739.08
JAP01: Manual lathe & mill 27,680.98
ONE01: Horizontal bandsaw 5,220.49
ONE01: Vertical bandsaw 4,477.01
YAM01: Mori Saike CNC lathe 91,587.50
YAM01: Mori Saike CNC mill 102,595.00
YAM01: Preset Arm 3,000.00
LIQ01: Syncrowave-welding 5,043.65
YAM01: Rotary table 25,294.31
ONE01: mill vise 1,892.65
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TOTAL MACHINE SHOP 295,130.95
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EXHIBIT A
EQUIPMENT AND MACHINERY
DESCRIPTION ACQ COST
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LAB EQUIPMENT:
Xxxxxx Extruder 81,141.23
Curing Oven 45,778.58
Hepburn Press 627,639.28
ROB01: Trim press 9,500.00
POL05: cutting die 506.43
KRH Rollers 61,958.83
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TOTAL LAB EQUIPMENT 826,524.35
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EXHIBIT A
EQUIPMENT AND MACHINERY
DESCRIPTION ACQ COST
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ANALYTICAL EQUIPMENT:
PAA01: RHEOLAB 38,305.08
RJL01: SEM system 161,155.78
ENV02: Humidity chamber DP 2,760.00
MAT01: Zeta potential analyzer 57,373.50
SHI01: TGA/DSC System 51,016.69
COU01: Optical bench 46,762.47
INS01: load frame 87,385.25
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TOTAL ANALYTICAL EQUIPMENT 434,748.75
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