Exhibit 2.11
ESCROW AND SECURITY AGREEMENT
-----------------------------
THIS ESCROW AND SECURITY AGREEMENT (this "Agreement") made as of April 25,
2002, by and among Organic Ingredients, Inc., a California corporation
("Buyer"), Spectrum Organic Products, Inc., a California corporation ("Seller"),
and Xxxxxxx Trust Company, N.A., as Escrow Agent and securities intermediary
(the "Escrow Agent").
W I T N E S S E T H:
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WHEREAS Buyer, Seller and Acirca, Inc. have entered into an Asset Purchase
Agreement (the "Purchase Agreement") dated as of April 25, 2002, pursuant to
which Buyer has acquired the Business and the Purchased Assets and paid the
Closing Purchase Price, in each case as such term is defined therein;
WHEREAS, pursuant to Article V of the Purchase Agreement, Seller has agreed
to indemnify and hold harmless the Buyer Indemnitees (as defined in the Purchase
Agreement) with respect to certain liabilities, and Seller and Buyer have agreed
to escrow $250,000 of the Closing Purchase Price (the "Indemnity Escrowed
Amount") to be paid to Seller or Buyer Indemnitees as provided herein;
WHEREAS, pursuant to Section 1.8 of the Purchase Agreement, Buyer has paid
the Indemnity Escrowed Amount to the Escrow Agent to be held in escrow pursuant
to the terms of this Agreement; and
WHEREAS, in order to induce Buyer to pay the Escrowed Amount to the Escrow
Agent, and in consideration therefor, Seller has agreed to grant to Buyer a
perfected lien on and security interest in the Indemnity Escrowed Amount;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Purchase Agreement, the parties hereto hereby agree
as follows:
ARTICLE I
Certain Definitions
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Capitalized terms used but not defined herein have the meaning assigned to
such terms in the Purchase Agreement. In addition, capitalized terms used herein
have the meaning set forth in this Article I or elsewhere in this Agreement.
The term "Indemnity Accounting Fees" means any amounts paid by Buyer to the
Accounting Firm (as defined herein) to determine the Remaining Indemnity Amount
pursuant to Section 4.02 or 4.03 hereof.
The term "Indemnity Escrowed Funds" means the Indemnity Escrowed Amount
plus all interest accrued thereon as provided in Section 2.02 hereof minus the
sum of (i) any Indemnity Amounts paid to Buyer Indemnitees pursuant to Section
4.01 or 4.02(b) hereof, (ii) any Indemnity Stepdown Payments paid to Seller
pursuant to Secton 4.02 (a) hereof, (iii) Indemnity Accounting Fees, and (iv)
any amounts distributed to Seller pursuant to Section 4.03 or 4.04 hereof, all
of which shall be held by the Escrow Agent in the Indemnity Collateral Account
(as defined herein).
The term "Indemnity Stepdown Payment" means the amount of the Indemnity
Escrowed Funds paid by Buyer to Seller on each of the Indemnity Stepdown Payment
Dates as provided in Section 4.02 hereof.
The term "Indemnity Stepdown Payment Dates" means each of August 30, 2002,
and December 31, 2002.
The term "Remaining Indemnity Amount" means, as of any date, the aggregate
amount of Damages that are reasonably likely to arise in connection with all
Claims theretofore made by a Buyer Indemnitee for which indemnification is
provided pursuant to Article V of the Purchase Agreement.
The term "Termination Date" means December 31, 2002.
The term "UCC" means the Uniform Commercial Code in effect in the State of
Connecticut.
ARTICLE II
Creation of Escrow;
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Investment of Escrowed Funds
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SECTION 2.01. Creation of Escrow. The Escrow Agent hereby agrees to accept
the Indemnity Escrowed Amount, and hold the Indemnity Escrowed Funds in escrow
in a collateral account at the Escrow Agent (the "Indemnity Collateral Account")
pursuant to the terms of this Agreement. The Escrow Agent agrees that the
Indemnity Collateral Account is a "securities account" within the meaning of
Section 8-501(a) of the UCC and that each item of property credited to the
Indemnity Collateral Account shall be treated as a "financial asset" within the
meaning of Section 8-102(a)(9) of the UCC. Except as otherwise provided in
Section 3.01 hereof, the Escrow Agent hereby agrees that the Indemnity
Collateral Account and all Indemnity Escrowed Funds held hereunder shall be held
for the account of Seller; provided that Seller and Buyer expressly agree that
no portion of the Indemnity Collateral Account or the Indemnity Escrowed Funds
shall be or become part of the bankruptcy estate of Seller in the event that
Seller is or becomes the subject debtor of a bankruptcy proceeding.
SECTION 2.02. Investment of Escrowed Funds. The Escrow Agent, at the
written direction of Seller, shall, to the extent practicable, invest and
reinvest the Indemnity Escrowed Funds in any of the following as may be
specified in writing by Seller: (i) readily marketable direct obligations of or
obligations guaranteed by the United States of America maturing within one year
from their respective dates of issuance, (ii) certificates of deposit maturing
within thirty (30) days from their respective dates of issuance and issued by
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state or national banking institutions each of which shall have a capital and
undivided surplus (as reflected in its latest publicly available financial
statements) aggregating at least fifty million dollars ($50,000,000), (iii)
municipal bonds of issuers that have a class of short-term obligations rated in
one of the three highest debt-rating categories for short-term debt by Standards
& Poor's, Moody's or Fitch, maturing within one year of their dates of issuance,
and (iv) money market mutual funds meeting the requirements of Rule 2a-7 under
the Investment Company Act of 1940, maturing within one (1) year of their dates
of issuance (the foregoing clauses (i) through (iv) being hereinafter referred
to as "Investments").
ARTICLE III
Grant of Security Interest
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SECTION 3.01. Grant. Seller hereby grants to Buyer, to the extent and so
long as any of the Indemnity Escrowed Amount and all moneys from time to time
held standing to the credit thereof are held by the Escrow Agent hereunder, as
of and from the date such funds are received by the Escrow Agent, a perfected,
first priority security interest in the Indemnity Collateral Account, such funds
and Seller's right to receive distributions thereof (collectively, the "Secured
Funds"), to secure the payment of the amounts, if any, payable to the Buyer
Indemnitees pursuant to Article V of the Purchase Agreement. In connection
therewith, Seller expressly agrees (i) that the Escrow Agent is acting as
Buyer's agent solely to the extent necessary to perfect Buyer's first priority
security interest in the Secured Funds; (ii) to execute and deliver such
instruments as Buyer may from time to time reasonably request for the purpose of
evidencing and perfecting such security interest; and (iii) not to accept any
"entitlement orders" (as such term is defined in Section 8-102(a)(8) of the UCC)
with respect to the Indemnity Collateral Account or the Indemnity Escrowed Funds
except as expressly set forth in this Agreement. The Escrow Agent will promptly
notify Seller and Buyer if any Person asserts any Lien against the Indemnity
Collateral Account or any portion of the Indemnity Escrowed Funds.
SECTION 3.02. Representations and Covenants of Seller. Seller hereby
represents, warrants and covenants as follows:
(a) As a result of the execution and delivery of this Agreement and the
filing of any financing statements or other documents necessary to assure,
preserve and perfect the security interest created hereby, Buyer shall have a
valid, perfected, enforceable lien on, and a continuing security interest in,
the Secured Funds, enforceable and superior as such as against creditors and
purchasers and such lien shall be superior and prior to all other liens on the
Secured Funds;
(b) Seller shall promptly give written notice to Buyer of any levy or
attachment, execution or other process against any of the Secured Funds;
(c) Seller at its sole cost and expense shall take any and all actions
reasonably necessary or desirable to defend the Secured Funds against the claims
and demands of all persons other than Buyer Indemnitees or Buyer and to defend
the security interest of Buyer in the Secured Funds and the priority thereof
against any adverse lien of any nature; and
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(d) Seller shall pay and discharge when due all taxes, levies and other
charges on the Secured Funds, unless such tax, levy or other charge is being
contested in good faith and with respect to which adequate reserves as
determined in good faith by Seller have been established and are being
maintained.
ARTICLE IV
Distributions from Indemnity Collateral Account
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SECTION 4.01. Distributions to Buyer Indemnitees. If at any time and from
time to time Buyer advises the Escrow Agent in writing (with a copy delivered
simultaneously to Seller) (such notice, a "Claim") (a) that a Buyer Indemnitee
is entitled to indemnification pursuant to Article V of the Purchase Agreement
and (b) of the amount of indemnification due (the "Indemnity Amount"), then the
Escrow Agent shall, between sixteen (16) and twenty (20) Business Days after the
date of receipt of the written notice from Buyer, deliver Indemnity Escrowed
Funds equal to the Indemnity Amount to Buyer (or any persons designated in
writing by Buyer), unless the Escrow Agent shall have received, within (15)
fifteen Business Days after the date the Escrow Agent received such written
notice from Buyer, a written objection from Seller to such delivery setting
forth the amount in dispute, in which case the Escrow Agent shall deliver any
undisputed amount to Buyer (or its designee) and shall continue to hold the
disputed amount until either (A) receipt of a certificate signed by Buyer and
Seller directing the Escrow Agent to deliver Indemnity Escrowed Funds equal to
the agreed Indemnity Amount set forth in such certificate to Buyer or (B)
receipt of an order of a court of competent jurisdiction directing the Escrow
Agent to deliver Indemnity Escrowed Funds equal to the disputed Indemnity Amount
specified therein to Buyer (or its designee). As promptly as practicable
following the receipt of any such certificate or order, the Escrow Agent shall
deliver to Buyer Indemnity Escrow Funds equal to the Indemnity Accounting Fees.
SECTION 4.02. Distributions to Seller on Indemnity Stepdown Payments. (a)
No later than forty-five (45) calendar days prior to each Indemnity Stepdown
Payment Date, Buyer and Seller shall attempt in good faith to agree in writing
to an estimate of the Remaining Indemnity Amount as of such date. In the event
that Buyer and Seller are unable to agree to the Remaining Indemnity Amount by
the thirtieth (30th) calendar day prior to the Indemnity Stepdown Payment Date,
then a nationally recognized independent accounting firm not then engaged by
Buyer or Seller (the "Accounting Firm") shall determine such amount within
thirty (30) calendar days thereafter. The fees and expenses of the Accounting
Firm shall be shared equally by Buyer and Seller. In determining such Remaining
Indemnity Amount with respect to Claims relating to a matter then in litigation,
the Accounting Firm will take steps similar to those that would be taken in
establishing a reserve under FAS 5 (including consultation with the counsel
litigating such matter). After the Remaining Indemnity Amount is determined, on
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each Indemnity Stepdown Payment Date, a copy of such determination, signed by
both Buyer and Seller, shall be delivered to the Escrow Agent. As promptly as
practicable following the determination of the Remaining Indemnity Amount, the
Escrow Agent shall deliver to Seller the Indemnity Stepdown Payment for such
Indemnity Stepdown Payment Date, the amount of which shall be, (i) on the first
(1st) Indemnity Stepdown Payment Date, the lesser of (A) $125,000 and (B) the
excess of (1) the Indemnity Escrowed Funds (immediately prior to payment of any
Indemnity Stepdown Payment on such date) over (2) $125,000 plus the Remaining
Indemnity Amount as of such date, and (ii) on the second (2nd) Indemnity
Stepdown Payment Date, the amount equal to the amount, if any, by which the
Indemnity Escrowed Funds (immediately prior to payment of any Indemnity Stepdown
Payment on such date) exceed the Remaining Indemnity Amount as of such date.
(b) Notwithstanding anything in the foregoing Section 4.02(a):
(i) The Escrow Agent shall not make any Indemnity Stepdown Payment if,
on the applicable Indemnity Stepdown Payment Date, any Indemnity Amount (or
portion thereof) then being disputed has not been accounted for in the Remaining
Indemnity Amount as determined pursuant to Section 4.02 hereof; and
(ii) If the Escrow Agent is unable to deliver the full amount of any
Indemnity Amount due to Buyer (or its designee) pursuant to Section 4.01 hereof,
Seller shall pay to Buyer (or its designee) not more than five (5) Business Days
thereafter, by wire transfer or certified check made payable to Buyer (or its
designee), such Indemnity Amount or portion thereof, to the extent that (A) such
Indemnity Amount or portion thereof has not been paid otherwise hereunder and
(B) the payment of such Indemnity Amount or portion thereof does not exceed the
limitation set forth in Section 4.05 hereof.
SECTION 4.03. Initial Distribution to Seller After the Termination Date. No
later than forty-five (45) calendar days after the Termination Date, Buyer and
Seller shall attempt in good faith to agree in writing to an estimate of the
Remaining Indemnity Amount as of such date, if any. Any disagreement as to the
Remaining Indemnity Amount shall be resolved in the manner (including payment of
the Accounting Firm's fees and expenses) and within the time periods provided in
Section 4.02 hereof. After the Remaining Indemnity Amount is determined and a
copy of such determination, signed by both Buyer and Seller, is sent to the
Escrow Agent, there shall be retained, in the Indemnity Collateral Account,
Indemnity Escrowed Funds equal to the Remaining Indemnity Amount. As promptly as
practicable following the determination of the Remaining Indemnity Amount, the
excess, if any, of the Indemnity Escrowed Funds over the Remaining Indemnity
Amount shall be distributed to Seller. If the Remaining Indemnity Amount is
zero, this Article IV shall terminate and all remaining Indemnity Escrowed Funds
shall be paid to Seller.
SECTION 4.04. Special Distributions to Seller. (a) If, following the
Termination Date, any Claim is resolved (a "Resolved Claim") for an amount that
is less than the Indemnity Amount specified in the notice with respect to such
Resolved Claim (or, if less, the amount of Indemnity Escrowed Funds then held in
the Indemnity Collateral Account with respect to such Resolved Claim pursuant to
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the most recent determination of the Remaining Indemnity Amount), the Escrow
Agent shall distribute to Seller, upon written notice signed by Buyer and
Seller, any Indemnity Escrowed Funds being held in respect of such Resolved
Claim in excess of the actual Indemnity Amount with respect to such Resolved
Claim; provided that if any Buyer Indemnitee is entitled to indemnification with
respect to such Resolved Claim, (i) Seller or a court of competent jurisdiction
shall have directed the Escrow Agent to deliver Indemnity Escrowed Funds to such
Buyer Indemnitee with respect thereto pursuant to Section 4.01 hereof and (ii)
the amount of Indemnity Escrowed Funds then being held in respect of all other
Claims shall not be less than the Remaining Indemnity Amount (as most recently
determined) adjusted to reflect the resolution of such Resolved Claim.
(b) If, at any time after the Termination Date, Buyer has knowledge
that, as to any Remaining Indemnity Amount being held in escrow, the Remaining
Indemnity Amount exceeds the aggregate amount of Damages that are reasonably
likely to arise in connection with all outstanding Claims, Buyer shall notify
the Escrow Agent in writing (with a copy to Seller) and the Escrow Agent shall
release all Indemnity Escrowed Funds in excess of the amount of Damages that are
reasonably likely to arise in relation to such Claims, if any.
SECTION 4.05. Limitation on Distributions to Buyer. In no event shall Buyer
seek payment to it of any amount under this Article IV in excess of the
Indemnity Escrowed Amount.
ARTICLE V
The Escrow Agent
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SECTION 5.01.
(a) General. The Escrow Agent shall not deal with the Indemnity
Escrowed Funds except in accordance with (i) this Agreement, (ii) written
instructions given in conformity with this Agreement or (iii) instructions
agreed to in writing by Buyer and Seller. The Escrow Agent shall not be bound in
any way by the Purchase Agreement or by any agreement or contract between the
Buyer and Seller other than this Agreement (whether or not the Escrow Agent has
knowledge thereof), it being understood that the Escrow Agent's only duties and
responsibilities shall be to invest, hold and distribute the Indemnity Escrowed
Funds in accordance with the terms of this Agreement. The Escrow Agent shall not
be responsible for any loss resulting from investments of the Indemnity Escrowed
Funds in accordance with the terms of this Agreement. The Escrow Agent shall
have no liability with respect to any action taken by it except for its own
gross negligence or willful misconduct. The Escrow Agent makes no
representations and has no responsibility as to the validity, genuineness or
sufficiency of any of the documents or instruments included in the subject
matter of the escrow. The Escrow Agent may rely and shall be protected in
relying upon any resolution, certificate, opinion, request, communication,
demand, receipt or other paper or document in good faith believed by it to be
genuine and to have been signed or presented by the proper party or parties in
accordance with the terms of this Agreement. The Escrow Agent may act in
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reliance upon the advice of counsel satisfactory to it in reference to any
matter in connection with the escrow and shall not incur any liability for any
action taken in good faith in accordance with such advice.
(b) Distributions to Seller. All distributions to Seller of Indemnity
Escrowed Funds hereunder shall be made via wire transfer to the following
account:
Xxxxx Fargo Bank, N.A.
San Francisco, CA
ABA: 000000000
Account Name: WFBCI for Spectrum Organic Products, Inc.
Account Number: # 4375-657665
Notwithstanding anything to the contrary herein, the foregoing instructions
shall not be modified without the written consent of Xxxxx Fargo Business
Credit, Inc.
SECTION 5.02. Fees. The Escrow Agent's fees and expenses (including the
reasonable fees, expenses and disbursements of its counsel) in acting hereunder
shall be paid by Seller. While the Escrow Agent holds the Indemnity Escrowed
Funds, any dividend or interest income earned by the Indemnity Escrowed Funds
shall be reinvested in the Indemnity Escrowed Funds and shall be added to the
amount of the Indemnity Escrowed Funds then being held by Escrow Agent, net of
any monthly fees, escrow fees or expenses due the Escrow Agent. The Escrow
Agent's fee is $2,500 per account per year (or any part thereof).
SECTION 5.03. Resignation. The Escrow Agent or any successor Escrow Agent
hereunder may resign by giving thirty (30 )days, prior written notice of
resignation to Buyer and Seller, and such resignation shall be effective from
the date specified in such notice. In case the office of Escrow Agent shall
become vacant for any reason, Buyer may appoint a bank or trust company having
capital and undivided surplus (as reflected in its latest publicly available
certified financial statements) of not less than twenty-five million dollars
($25,000,000) and having an office in the State of New York, as successor Escrow
Agent hereunder by an instrument or instruments in writing delivered to such
successor Escrow Agent, the retiring Escrow Agent and Seller, whereupon such
successor Escrow Agent shall succeed to all the rights and obligations of the
retiring Escrow Agent as if this Agreement were originally executed by such
successor Escrow Agent, and the retiring Escrow Agent shall duly transfer and
deliver to such successor Escrow Agent the Indemnity Escrowed Funds in the form
held by it hereunder at such time.
SECTION 5.04. Dispute Resolution; Reliance Upon Counsel or By Court. In the
event of any dispute between or among the parties to this Agreement or of any
dispute as to the Escrow Agent and its duties, the Escrow Agent shall be
entitled to refuse to comply with any claim or demand and:
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(a) may act or refrain from acting in full reliance upon and with the
advice of counsel selected by it and shall be fully protected in so acting or
refraining from acting on the advice of counsel; or
(b) may refrain from acting until required to do so by final
adjudication by a court of competent jurisdiction; or
(c) may deposit the Indemnity Escrowed Funds held by it with the
Superior Court of Connecticut, Judicial District of Waterbury and commence an
interpleader action to determine the proper disposition of the Indemnity
Escrowed Funds. The cost of such counsel and the costs of such action including
reasonable attorneys' fees incurred by the Escrow Agent shall be paid as ordered
by such court, but if there be no order, then by the parties (other than the
Escrow Agent) equally.
ARTICLE VI
Miscellaneous
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SECTION 6.01. Registration. The Escrow Agent may register any Investments
in its own name or in the name of a nominee or maintain them in bearer form and
may deposit any such Investments in a depository or clearing corporation.
SECTION 6.02. Expenses. Each of Buyer and Seller shall pay its own costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
SECTION 6.03. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered personally or
sent by registered or certified mail (return receipt requested), postage
prepaid, to the parties to this Agreement at the following addresses or at such
other address for a party as shall be specified by like notice:
to Buyer:
Organic Ingredients, Inc.
Xxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxx, Xxx Xxxx 00000
Attention:
Fax No.:
with a copy to:
Acirca, Inc.
Xxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Chief Financial Officer
Fax No.: (000) 000-0000
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and with a copy to:
Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxxxx
Fax No.: (000) 000-0000
to Seller:
Spectrum Organic Products, Inc.
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx Xxxxxxx
Fax No. : (000) 000-0000
to the Escrow Agent:
Xxxxxxx Trust Company, N.A.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx
Fax No.: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxxx, P.C.
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Fax No. : (000) 000-0000
All such notices and communications shall be deemed to have been received on the
date of delivery if personally delivered or on the third Business Day after the
mailing thereof.
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SECTION 6.04. Assignability. This Agreement shall inure to the benefit of
and shall be binding upon the parties hereto and their respective successors,
but shall not be assignable by any party without the prior written consent of
the other parties.
SECTION 6.05. Purchase Price Adjustment; Taxes. The parties hereto agree
that any amounts paid to any Buyer Indemnitee hereunder shall be treated as an
adjustment to the Purchase Price paid by Buyer pursuant to the Purchase
Agreement. The parties hereto agree that all Escrowed Funds (other than the
Escrowed Amount) shall be treated as income of Seller for all Federal, state and
local tax purposes.
SECTION 6.06. Entire Agreement. This Agreement and the Asset Purchase
Agreement and the other Related Agreements except as set forth therein
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements and undertakings, written and
oral.
SECTION 6.07. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CONNECTICUT,
WITHOUT GIVING EFFECT TO THE CONFLICTS RULES THEREOF TO THE EXTENT SUCH
CONFLICTS RULES WOULD REQUIRE THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION.
SECTION 6.08. Forum Selection And Consent to Jurisdiction. ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE UNITED STATES
DISTRICT FOR THE DISTRICT OF CONNECTICUT OR THE SUPERIOR COURT OF CONNECTICUT,
JUDICIAL DISTRICT OF WATERBURY, AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PARTY HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ANY OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. EACH PARTY HERETO FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS FROM ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY HAND DELIVERY OR BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO SUCH PARTY, AS THE CASE MAY BE, AT THE ADDRESSES DESCRIBED IN SECTION 6 OF
THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE UPON HAND DELIVERY OR TEN (10)
DAYS AFTER SUCH MAILING. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY OBJECTION IT MAY HAVE TO VENUE AND
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTIONS OR
PROCEEDINGS.
SECTION 6.09. Article and Section Headings. The article, section and other
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
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SECTION 6.10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be a single agreement.
SECTION 6.11. Amendment; No Waivers. This Agreement may not be amended or
modified except (a) by an instrument in writing signed by Buyer, Seller and the
Escrow Agent or (b) by a waiver in accordance with the following sentence. Any
party hereto may (i) extend the time for the performance of any obligation or
other act of any other parties hereto or (ii) waive compliance with any
agreement or condition contained herein. Any such extension or waiver shall be
valid if set forth in an instrument in writing signed by the party or parties to
be bound thereby. Any waiver of any term or condition shall not be construed as
a waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this Agreement. The
failure of any party at any time to require performance of any provision hereof
shall in no manner affect its right at a later time to enforce the same. No
waiver by any party of any breach of any term contained in this Agreement shall
be deemed to be or construed as a further or continuing waiver of any such
breach in any subsequent instance or waiver of any breach of any other term
contained in this Agreement.
SECTION 6.12. Severability. If any term or provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nonetheless
remain in full force and effect so long as the economic and legal substance of
the transactions contemplated by this Agreement is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated by this Agreement be
consummated as originally contemplated to the fullest extent possible.
SECTION 6.13. Further Assurances. Each of Buyer and Seller agree to execute and
deliver, upon the written request of any party hereto, any and all such further
instruments and documents as such party may deem desirable for the purpose of
obtaining the full benefits of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed as of the date first written above.
ORGANIC INGREDIENTS, INC.
By
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Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
SPECTRUM ORGANIC PRODUCTS, INC.
By
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Xxxxxxx Trust Company, N.A.
as Escrow Agent,
By
---------------------------------
Name:
Title:
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