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Exhibit 10.26
FIRST AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF ASSETS (this
"First Amendment") executed effective as of the 25 day of June, 1999 (the
"Effective Date") is by and between AC HUMKO CORP., a Delaware corporation
("Purchaser"), and BIONUTRICS, INC., a Nevada corporation, and NUTRITION
TECHNOLOGY CORPORATION, a Nevada corporation (collectively, "Seller").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller are parties to that Agreement for
Purchase and Sale of Assets dated as of October 1, 1998 (the "Purchase
Agreement"), pursuant to which Seller sold, transferred, assigned and delivered
to Purchaser, and Purchaser purchased, accepted and received, the Purchased
Assets (as defined in the Purchase Agreement); and
WHEREAS, Purchaser, Seller, and other parties have entered into that
certain Master Formation Agreement of even date herewith (the "MFA"); and
WHEREAS, Seller will benefit directly from the transaction set forth in
the MFA; and
WHEREAS, Purchaser and Seller desire to amend the Purchase Agreement in
the manner hereinafter provided;
NOW, THEREFORE, in consideration of the premises, the execution of the
MFA and the matters set forth therein and the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Terms Defined Above. As used in this First Amendment, each
of the terms "Seller", "Purchaser", "Purchase Agreement", "Effective Date" and
"First Amendment" shall have the meaning assigned to such term hereinabove.
Section 1.02 Terms Defined in Purchase Agreement. Each term defined in
the Purchase Agreement and used herein without definition shall have the meaning
assigned to such term in the Purchase Agreement, unless expressly provided to
the contrary.
Section 1.03 Other Definitional Provisions.
(a) The words "hereby", "herein", "hereinafter", "hereof",
"hereto" and "hereunder" when used in this First Amendment shall refer
to this First Amendment as a whole and not to any particular Article,
Section, subsection or provision of this First Amendment.
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(b) Section, subsection and Exhibit references herein are to
such Sections, subsections and Exhibits to this First Amendment unless
otherwise specified.
ARTICLE II.
AMENDMENTS TO PURCHASE AGREEMENT
Purchaser and Seller agree that the Purchase Agreement is hereby
amended, effective as of the Effective Date, in the following particulars:
Section 2.01 Amendments. Schedule 3.2 of the Purchase Agreement is
hereby amended by deleting Schedule 3.2 in its entirety and substituting in lieu
thereof the following:
"SCHEDULE 3.2
ROYALTY PAYMENTS
A. ROYALTY PAYMENTS.
1. The Royalty Payments shall be fifteen percent (15%) of EBIT for the
period beginning on the date immediately following the last Saturday in August
of the immediately preceding calendar year, and ending on the last Saturday in
August of the immediately following calendar year. The first such period shall
commence on the Closing Date and end on August 28, 1999.
2. Royalty Payments shall be due and payable by Purchaser to Seller on
or before thirty (30) days immediately following the applicable period for which
an applicable Royalty Payment is due.
B. EBIT.
As used herein, "EBIT" shall mean all Net Earnings before applicable
state and federal corporate income taxes. "Net Earnings" shall mean the
difference between Gross Revenues minus all costs (including depreciation and
amortization) incurred by Purchaser in connection with the ownership and
operation of the Business. "Gross Revenues" shall mean all revenues received
from the Business for the applicable period for which the applicable Royalty
Payment is calculated. All such items shall be determined in accordance with
generally accepted accounting principles applied consistently.
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C. NON-DEFAULT.
Purchaser shall not be obligated to make any Royalty Payments to
Seller during any period in which Seller is in default in performance of any of
its obligations under this Agreement, or if a default by any party other than
Purchaser exists under (i) the Stock Purchase Agreement, (ii) the Technology
Agreement, (iii) the Supply Agreement, (iv) any other document executed in
connection with this Agreement (v) that certain Master Formation Agreement dated
June 25, 1999, by and among Purchaser, InCon Technologies, Inc., InCon
International, Inc., Nutrition Technology Corporation, and Bionutrics, Inc., or
(vi) the Members Agreement, as defined in the Master Formation Agreement
referred to in clause (v) above.
D. NO PARTNERSHIP
Nothing contained in this Agreement including, without limitation, the
provisions of this Schedule shall be deemed to constitute Seller and Purchaser
partners or joint venturers with respect to any matter, and neither party may
bind the other party for any obligation or liability.
E. NO OBLIGATION TO OPERATE AND MAINTAIN THE BUSINESS
Nothing contained in this Agreement including, without limitation, the
provisions of this Schedule shall be deemed to require Purchaser to continually
operate and maintain the Business. Without limiting the generality of the
foregoing, Purchaser, at any time and from time to time, may cease operating the
Business even though any such cessation may have an adverse effect on Net
Earnings or may result in there being no Net Earnings.
F. CONTINUATION ON SALE OR OTHER TRANSFER OF THE BUSINESS
If Purchaser shall sell or otherwise transfer the Business, then all of
the terms and provisions of this Schedule 3.2 shall continue in full force and
effect and the party to whom the Business is so sold or otherwise transferred
shall be bound by the terms and provisions of this Schedule 3.2. Upon any such
sale or transfer, Purchaser shall be relieved of all liability under this
Schedule 3.2, and Purchaser shall not have any further liability or obligations
under this Schedule 3.2 after any such sale or transfer. Promptly after the
consummation of any such sale or transfer, Purchaser shall notify Seller of the
identity and address of such new Purchaser."
ARTICLE III.
MISCELLANEOUS
Section 3.01 Adoption, Ratification and Confirmation of Purchase
Agreement. Each of the Purchaser and the Seller does hereby adopt, ratify and
confirm the Purchase Agreement, as amended hereby, and acknowledges and agrees
that the Purchase Agreement, as amended hereby, is and remains in full force and
effect.
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Section 3.02 Successors and Assigns. This First Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted pursuant to the Purchase Agreement.
Section 3.03 Counterparts. This First Amendment may be executed by one
or more of the parties hereto in any number of separate counterparts, and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument and shall be enforceable as of the Effective Date upon the execution
of one or more counterparts hereof by the Purchaser and the Seller. In this
regard, each of the parties hereto acknowledges that a counterpart of this First
Amendment containing a set of counterpart execution pages reflecting the
execution of each party hereto shall be sufficient to reflect the execution of
this First Amendment by each necessary party hereto and shall constitute one
instrument.
Section 3.04 Number and Gender. Whenever the context requires,
reference herein made to the single number shall be understood to include the
plural; and likewise, the plural shall be understood to include the singular.
Words denoting sex shall be construed to include the masculine, feminine and
neuter, when such construction is appropriate; and specific enumeration shall
not exclude the general but shall be construed as cumulative. Definitions of
terms defined in the singular or plural shall be equally applicable to the
plural or singular, as the case may be, unless otherwise indicated.
Section 3.05 Entire Agreement. This First Amendment constitutes the
entire agreement among the parties hereto with respect to the subject hereof.
All prior understandings, statements and agreements, whether written or oral,
relating to the subject hereof are superseded by this First Amendment.
Section 3.06 Invalidity. In the event that any one or more of the
provisions contained in this First Amendment shall for any reason be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this First Amendment.
Section 3.07 Titles of Articles, Sections and Subsections. All titles
or headings to Articles, Sections, subsections or other divisions of this First
Amendment or the exhibits hereto, if any, are only for the convenience of the
parties and shall not be construed to have any effect or meaning with respect to
the other content of such Articles, Sections, subsections, other divisions or
exhibits, such other content being controlling as the agreement among the
parties hereto.
Section 3.08 Governing Law. This First Amendment shall be deemed to be
a contract made under and shall be governed by and construed in accordance with
the internal laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the Effective Date.
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PURCHASER: AC HUMKO CORP.
By:
Xxxxxx X. Xxxxxxxxx,
President and CEO
[SIGNATURE PAGE 1 TO FIRST AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE OF ASSETS]
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SELLER:
BIONUTRICS, INC., AND NUTRITION
TECHNOLOGY CORPORATION
By:
Xxxxxx X. Xxxx,
President
[SIGNATURE PAGE 2 TO FIRST AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE OF ASSETS]
