EXHIBIT 10-12
LLC INTEREST REDEMPTION AGREEMENT
This Agreement is entered into this 30th day of December 2002 by and
between Developed Technology Resource, Inc., a Minnesota corporation
(hereinafter ODTRO), Xxxxx Xxxxx, a Wisconsin resident, and Savory Snacks LLC, a
Wisconsin limited liability company (hereinafter the OCompanyO).
RECITALS
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A. DTR and Xx. Xxxxx are the only members of the Company.
B. DTR has a 40% ownership interest and Xx. Xxxxx has a 60% ownership interest
in the Company.
C. The Company is desirous of redeeming and DTR is desirous of selling the DTR
Interest.
AGREEMENT
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NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
REDEMPTION OF INTEREST, PRICE, ETC.
2.1 REDEMPTION OF INTEREST. At the Closing, the Company will redeem from DTR,
and DTR will assign, transfer and convey to the Company, the DTR Interest,
pursuant to the terms and conditions hereof by delivery of an Assignment in the
form attached herein as Exhibit B, and such other documentation as the Company
may reasonably require.
2.2 REDEMPTION PRICE. The Redemption Price shall be $1 (one dollar) which will
be paid in cash on the date of this agreement.
ARTICLE II
WARRANTIES AND REPRESENTATIONS
3.1 WARRANTIES AND REPRESENTATIONS OF DTR. DTR warrants and represents to the
Company, and Xx. Xxxxx as follows:
(a) ORGANIZATION, POWER AND AUTHORITY. DTR is a corporation duly
organized, validly existing and in good standing under the laws of the
state of Minnesota, and has the full power and authority to enter into this
Agreement and to carry out the transactions provided for herein. All action
of the Board of Directors and shareholders of DTR required to permit DTR to
comply with the provisions of this Agreement have been taken.
(b) NO ENCUMBRANCES. The DTR Interest, when transferred by DTR to the
Company under the terms of this Agreement, will be free of all liens,
restrictions and encumbrances, except those imposed on DTR under the terms
of the LLC Agreement, and except for restrictions on transfer imposed under
applicable state and federal laws relating to the offer and sale of
securities.
(c) BINDING EFFECT. Upon execution and delivery of this Agreement by all
parties hereto, this Agreement shall be binding upon DTR, enforceable
against DTR in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditor's rights
generally, and by general principals of equity.
(d) NO CONFLICTS. The execution, delivery and performance of this
Agreement by DTR will not (i) violate any order, judgment, decision or
decree of any court, governmental agency or person authorized to resolve
disputes having jurisdiction or proper authority over or respect to DTR or
its properties, or the Articles of Incorporation or By-Laws of DTR; (ii)
result in a material breach of or constitute (with due notice or lapse of
time) a material default under any agreement to which DTR is a party or by
which DTR is bound; or (iii) violate any provision of any law applicable to
DTR; in all cases where such violation, breach or default is likely to have
a material adverse effect on the DTR Interest or the consummation of the
transactions provided for herein.
3.2 REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company warrant and
represent that the execution, delivery and performance of this Agreement by the
Company will not violate any order, judgment, decision or decree of any court,
governmental agency or person authorized to resolve disputes having jurisdiction
or proper authority over or respect to the Company, or their respective
properties; the Certificate of Formation, the LLC Agreement or any other
governing document of the Company.
ARTICLE IV
CLOSING AND CLOSING TRANSACTIONS
4.1 CLOSING. The event at which the DTR Interest is assigned and transferred to
the
Company, and the Redemption Price is paid by the Company to DTR, is referred to
herein as the OClosing,O and the time said Closing occurs is referred to herein
as the OTime of Closing.O The Closing shall take place at the Company on Xxxxxxx
Avenue, Madison, Wisconsin, at 10:00 a.m. Central Standard Time, on December 30,
2002, or at such other place and time as DTR and the Company may mutually agree.
4.2 DELIVERIES BY DTR. DTR shall deliver, or cause to be delivered, to the
Company at or prior to the Closing, the following:
(i) An Assignment, duly executed by DTR, in the form attached hereto as
Exhibit A; and
(ii) Such other documents or instruments as may be reasonably necessary to
carry out the transactions contemplated hereby.
4.3 DELIVERIES BY THE COMPANY. The Company shall deliver, or cause to be
delivered, to DTR, at or prior to the Closing, the following:
(i) $1 in cash;
(ii) such other documents or instruments as may be reasonably necessary to
carry out the transactions contemplated hereby.
ARTICLE V
OTHER AGREEMENTS OF THE PARTIES
5.1 RELIEF FROM LLC AGREEMENT. Upon the transfer of the DTR Interest to the
Company, DTR shall no longer be a member of the Company and will no longer be a
party to, or be bound under the terms of, the LLC Agreement.
ARTICLE VI
SURVIVAL, INDEMNIFICATION, INJUNCTIVE RELIEF, ETC.
6.1 SURVIVAL. All representations, warranties, covenants and agreements
contained in this Agreement, and all representations and warranties contained in
any document delivered pursuant hereto, shall be deemed to be material and to
have been relied upon by the parties hereto (unless otherwise stated in such
document), and shall survive the Closing until all cash payments have been paid.
6.2 INDEMNIFICATION BY THE COMPANY. The Company shall indemnify, defend and
hold harmless DTR from and against any and all loss, damage (except incidental
and
consequential damages), expense (including court costs, reasonable attorneys'
fees, interest expenses and amounts paid in compromise or settlement), suits,
actions, claims, penalties, liabilities or obligations (collectively, OLossesO)
related to, caused by, arising from or on account of any misrepresentation, or
breach of any representation, warranty, covenant or agreement of the Company,
made or contained in this Agreement.
6.3 INDEMNIFICATION BY DTR. DTR shall indemnify, defend and hold harmless the
Company from and against any and all Losses related to, caused by, arising from
or on account of any misrepresentation, or breach of any misrepresentation
warranty, covenant or agreement of DTR, made or contained in this Agreement.
6.4 INDEMNIFICATION - GENERAL. Promptly after discovery by an indemnified party
under Section 6.2 or 6.3 of any facts or circumstances which form the basis for
a claim of indemnification, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under Section 6.2 or 6.3,
notify in writing the indemnifying party of such facts or circumstances. The
omission of the indemnified party to promptly notify the indemnifying party will
not relieve the indemnifying party from any liability or obligation under
Section 6.2 or 6.3 as to the particular item for which indemnification is then
being sought, unless such omission materially impairs the indemnifying party's
ability to adequately remedy such facts or circumstances, or to defend any third
party action based in whole or part thereon. In case any third party action is
brought against any indemnified party and it seeks indemnification hereunder,
the indemnifying party will be entitled to participate therein, and, to the
extent that it may wish, to assume the defense thereof with counsel who shall be
to the reasonable satisfaction of such indemnified party. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under Section 6.2 or 6.3 for any legal or other expenses subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Any such indemnifying party shall not be
liable to any such indemnified party on account of any settlement with a third
party of any claim or action effected without the consent of such indemnifying
party. An indemnified party shall have the right to employ its own counsel in
any matter with respect to which indemnity may be sought by the indemnified
party against an indemnifying party in which event the fees and expenses of
separate counsel shall be borne by the indemnified party.
ARTICLE VII
VENUE AND JURISDICTION
7.1 With respect to any action brought by or against any party with respect to
this
Agreement, or any controversy arising out of this Agreement, each party hereto
submits and consents to the jurisdiction of the Wisconsin District Court.
ARTICLE VIII
GENERAL PROVISIONS
8.1 AMENDMENT AND WAIVER. No amendment or waiver of any provision of this
Agreement shall in any event be effective, unless the same shall be in writing
and signed by the parties hereto, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
8.2 NOTICES. To be effective, all notices or other communications required or
permitted hereunder shall be in writing. A written notice or other communication
shall be deemed to have been given hereunder (i) if delivered by hand, when the
notifying party delivers telecopier or overnight delivery service, on the first
business day following the date such notice or other communication is
transmitted by telecopier or timely delivered to the overnight courier, or (iii)
if delivered by mail, on the fourth business day following the date such notice
or other communication is deposited in the U.S. mail by certified or registered
mail addressed to the other party, whichever occurs earlier. Mailed or
telecopied communications shall be directed as follows unless written notice of
a change of address or telecopier number has been given in writing in accordance
with this paragraph:
To the Company Savory Snacks, LLC
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
To DTR: Xxxx Xxxx
Developed Technology Resource, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Copy to: Xxxxx X. Xxxxxxxx
Felhaber, Larson, Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
8.3 PARTIES IN INTEREST. This Agreement shall inure to the benefit of and be
binding upon
the parties named herein and their respective successors and assigns. Any
assignment of this Agreement or the rights hereunder by a party hereto without
the prior written consent of the other parties shall be void.
8.4 ENTIRE TRANSACTION. This Agreement and the other documents referred to
herein shall contain the entire understanding among the parties with respect to
the transactions contemplated hereby and shall supersede all other agreements
and understandings among the parties.
8.5 APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of Wisconsin.
8.6 COOPERATION. Subsequent to the Closing, the parties hereto will execute
such documents and take such actions as are reasonably requested by any other
party to carry out the intent of this Agreement.
8.7 HEADINGS. The Article, Section and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
8.8 COUNTERPARTS. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute on and the same Agreement.
The parties hereof have executed this Agreement as of the date set forth above.
Developed Technology Resource, Inc. Savory Snacks LLC.
/s/ XxXxx Xxxxxxxxx /s/ Xxxxx Xxxxx
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By: XxXxx Xxxxxxxxx By: Xxxxx Xxxxx
Its CEO, President & CFO Its President
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
ASSIGNMENT
For valuable consideration, receipt of which is hereby acknowledged,
Developed Technology Resource, Inc., a Minnesota corporation (herein "Seller"),
hereby assigns and transfers all of its right, title and interest in Savory
Snacks, LLC, a Wisconsin limited liability company (herein "Savory Snacks"),
including Seller's right as a member thereof, to Savory Snacks.
This assignment is made by Seller without warranty or representation of any
kind, express or implied.
From and after the date hereof, Seller shall duly perform such further acts
and duly execute, acknowledge and deliver all such further assignments,
transfers, conveyances and assurances as may be reasonably required to
effectively convey to Savory Snacks, Seller's interest in Savory Snacks.
Developed Technology Resource, Inc.
By /s/ XxXxx Xxxxxxxxx
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