EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered into
effective the 31st day of October, 2005, (the "Effective Date") by and among
ASIA PACIFIC INVESTMENT HOLDINGS, LTD., a British Virgin Islands company ("Asia
Pacific"), INCON TECHNOLOGIES, INC., a Delaware corporation ("InCon"), a wholly
owned subsidiary of BIONUTRICS, INC., a Nevada corporation ("Bionutrics"), BALI
HOLDINGS, LLC, a Delaware limited liability company ("Bali"), INCON PROCESSING,
L.L.C., a Delaware limited liability company ("Company"), INCON INTERNATIONAL,
INC. an Illinois corporation ("Purchaser"), X. X. XXXXXX ("Xxxxxx") and XXXX X.
XXXXXX ("Xxxxxx"). InCon and Asia Pacific are collectively referred to herein as
"Sellers". Purchaser and Sellers are herein collectively referred to as the
"Parties" and individually as a "Party".
RECITALS
A. Sellers each own fifty percent (50%) of the membership units in
the Company (the "Membership Interests").
X. Xxxxxxx are parties to the Members Agreement for the Company,
InCon Technologies, Inc., and AC Humko Corp. ("AC Humko") dated June 25, 1999
and the Master Formation Agreement for the Company by and among AC Humko Corp.,
InCon, Bionutrics, and certain other parties dated May 1999, as may have been
amended from time to time ("Master Agreement"). AC Humko's Membership Interest
was previously purchased by Asia Pacific and InCon is a wholly owned subsidiary
of Bionutrics.
X. Xxxxxx and Xxxxxx each own membership units in Bali (the "Bali
Interest") and are both employees of the Company.
D. Subject to the terms and conditions set forth herein, Sellers
desire to sell and Purchaser desires to purchase the Membership Interests.
AGREEMENT
In consideration of the promises and of the mutual agreements, provisions
and covenants herein contained, and the mutual benefits to be derived therefrom
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties do hereby covenant and agree as follows:
ARTICLE I.
PURCHASE AND SALE OF MEMBERSHIP INTERESTS
1.1. PURCHASE OF MEMBERSHIP INTERESTS. Based upon and subject to the
terms, agreements, warranties, representations and conditions of this Agreement,
Sellers hereby agree to sell, convey, transfer, and assign to Purchaser, and
Purchaser agrees to purchase, accept the conveyance, transfer and assignment of
the Membership Interests, free and clear of all liabilities,
obligations, security interests, liens and encumbrances in accordance with the
terms of this Agreement.
1.2. PURCHASE OF BALI INTEREST. Shaikh and Xxxxxx, respectively, each
hereby agrees that he will convey, transfer and assign to Sellers all of the
Bali Interest, free and clear of any and all claims, causes of action,
liabilities, obligations, interests, liens and encumbrances, and the Purchaser
undertakes to ensure that this transaction is accomplished as provided for
herein.
ARTICLE II.
CONSULTING AGREEMENT
2.1. CONSULTING AGREEMENT. Sellers agree to provide Consulting Services
(as defined below) to the Company for a term of three (3) years from the date of
this Agreement.. "Consulting Services" shall mean and include ongoing sales
work, identifying customers who could utilize the Company's products and
services, and assisting in securing a "facility contract" (as more fully
described in Section 3.3(b) below). In the event that the Sellers procure a
facility contract, then payment of the Consulting Fee shall be accelerated (as
described in Section 2.3 below).
2.2. CONSULTING FEE. As consideration for the Consulting Services
agreed to be rendered by Sellers to the Company pursuant hereto, the Company
shall pay a consulting fee to each of the Sellers as described in this Section
2.2. The Company shall pay each of the Sellers annually commencing with the year
ending August 31, 2006, the lesser of: (a) the sum of One Hundred Thousand
Dollars ($100,000.00); or (b) twenty-five percent (25%) of the Company's annual
EBITDA over the next five (5) years from the Effective Date ("Consulting Fee");
provided however, that the total amount of all payments to each of the Sellers
not exceed Three Hundred Thousand Dollars ($300,000.00), which total amount
shall be referred to herein as the Consulting Cap ("Consulting Cap"). Each of
the Sellers shall not be entitled to any other payment for the Consulting
Services. For purposes of clarity, the total of all Consulting Fee payments to
each of the Sellers shall not exceed the Consulting Cap, and the maximum amount
that is to be paid to each of the Sellers shall not exceed Three Hundred
Thousand Dollars ($300,000.00), a total to Sellers of Six Hundred Thousand
Dollars ($600,000.00). The Company shall provide an internally generated
financial statement for each year end commencing August 31, 2006. Payment shall
be due and payable on or before September 30 of each year.
2.3. ACCELERATION OF PAYMENT. In the event that a Facility Contract (as
defined in Section 3.3(b) below) is awarded to the Company prior to the payment
to the Sellers of the Consulting Cap then the payments required under Section
2.2 above shall be accelerated. The Company shall pay to each Seller the lesser
of (i) twenty five percent (25%) of the net profits collected from the client
pursuant to the Facility Contract; or (ii) the balance of the Consulting Cap.
2.4. AUDIT. Upon advanced prior written notice, Seller shall have the
right to audit the financial records of the Company within ninety (90) days of
being provided an annual statement reflecting the profit and/or loss for the
preceding year which was used for the calculation of the payment of the
Consulting Fee. The audit shall take place at the offices of the Company or in
the
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Sellers' sole discretion, at the offices of the Company's outside public
accountant, in either case, during reasonable business hours.
ARTICLE III.
CLOSING
3.1. LOCATION AND TIME. The closing of the transactions contemplated
hereby ("Closing") shall take place on the ____ day of November, 2005, or such
later date as is mutually agreed to by the Parties in writing ("Closing Date")
at 10:00 a.m. The Closing shall be at the offices of Purchaser's counsel or at
such other place as the Parties hereto shall agree in writing. The Parties need
not be present at the Closing location. The Closing may be continued for a
period of up to thirty (30) days to allow the Company to complete the
development of the Technology, as described in Section 3.3 below.
3.2. DELIVERIES. At the Closing and as a condition to Closing the
Purchaser, the Sellers, and the Company as the case may be, hereby agree to the
following Deliveries.
(a) SELLERS' AND/OR COMPANY'S DELIVERIES. Sellers and the
Company, as the case may be, shall deliver the following to the
Purchaser:
(i) the Assignment of Membership Interests (free and
clear of all pledges, liens, transfer and stamp tax obligations,
encumbrances, claims and other charges thereon of every kind);
(ii) the written resignations of any acting manager or
officer of the Company as the Purchaser shall direct (the "Written
Resignations");
(iii) duly executed waiver and consent of the transfers
from the Sellers waiving any preferential rights as provided for
in Section 11.3 of the Company's Member Agreement;
(iv) except for the obligations set forth in Schedule
3.2(iv), evidence of cancellation of any liability payable by the
Company to the Sellers as Members or employees of the Company;
(v) copies of any and all company books, records and
other property, including but not limited to the name "InCon
Processing, L.L.C.";
(vi) certified copy of resolutions adopted by each Seller
prior to the date of this Agreement, authorizing the transfer
contemplated hereby and the execution of any and all documents
required in connection herewith; and
(vii) such other documents, instruments, certificates and
agreements as may be reasonably required by the Purchaser in
connection with the consummation of the transactions contemplated
hereby.
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(b) PURCHASER'S AND/OR XXXXXX'X AND SHAIKH'S DELIVERIES. The
Purchaser and/or Xxxxxx and Xxxxxx shall deliver the following to the
Sellers:
(i) the Assignment of Bali Interest from Xxxxxx and
Shaikh to the Sellers in equal shares (free and clear of all
pledges, liens, transfer and stamp tax obligations, encumbrances,
claims and other charges thereon of every kind);
(ii) any and all documents, instruments, information,
applications, methods, technical information related to the
development of the Technology;
(iii) certified copy of resolutions adopted by the
Purchaser prior to the date of this Agreement authorizing the
transactions contemplated hereby and the execution of any and all
documents required in connection herewith; and
(iv) such other documents, instruments, certificates and
agreements as may be reasonably required by the Company or the
Sellers in connection with the consummation of the transactions
contemplated hereby.
3.3. TECHNOLOGY.
(a) DEVELOPMENT OF TECHNOLOGY. As a condition to Closing, the
Company shall complete the development of a tocotrienol processing
technology for use with palm oil distillate and similar fatty acid stream
derived from rice bran oil deodorization or other biological fatty acid
source (collectively "Feed"), that includes a pre-concentration method,
and any and all intellectual property relating thereto ("Technology").
The Company shall develop the Technology in sufficient detail for the
Sellers to file a patent application and to allow the Sellers reasonably
to communicate cost, operation, and method of the Technology to a third
party. Upon transfer of the Technology to the Sellers, the Technology
shall be the exclusive property of the Sellers to use freely in their
respective sole discretion, without further compensation to the Company
or Purchaser. The Parties acknowledge that each has a desire to cooperate
after the Closing and the transfer of the Technology to design, fabricate
and install an operating system based on the Technology for the
processing of Feed.
(b) DISTRIBUTION AND TRANSFER OF TECHNOLOGY. The development of
the Technology shall be completed before the transfer of the Membership
Interests to the Purchaser at or prior to Closing, the Company shall
distribute the Technology to the Sellers, jointly. Xxxxxx and Xxxxxx
shall take all reasonable steps to help facilitate the preparation,
filing, and prosecution of a patent application. All costs and expenses
related to the preparation of or prosecution of the patent application
shall be borne by the Sellers. The Sellers shall have the sole right,
ownership, and interest in the Technology and its patent to license or
sell the Technology in its sole discretion. As part of the Consulting
Services, the Sellers shall undertake to obtain a facility contract for
the Buyer for the manufacturing of the Technology, and if so, the
Consulting Fee shall be accelerated in the manner described above in
Section 2.3. "Facility Contract" shall mean the design and development of
a facility with adequate equipment to manufacture, produce, and utilize
the Technology. Each of the Sellers, respectively, shall, however,
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retain in its sole discretion the right to contract with a third party
supplier for a Facility Contract and in such an event neither Purchaser
nor the Company would receive any consideration from that contract.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLERS AND COMPANY
In order to induce the Purchaser to purchase the Membership Interests,
Sellers jointly and severally represent, warrant and agree that Section 4.1
through and including Section 4.5 are true and correct as of the date hereof and
will remain true and correct through and including the Closing Date.
4.1. ORGANIZATION, GOOD STANDING, AUTHORITY.
(a) The Company is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware;
(b) each Seller has the power and authority to enter into, to
perform the obligations by the Seller, and to consummate the transactions
and other acts contemplated by this Agreement.
(c) This Agreement constitutes the valid and binding obligation
of the Sellers enforceable in accordance with its terms; and
(d) the execution and the delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement, and the
compliance with or fulfillment of the terms and provisions of this
Agreement will not (i) violate or conflict with any of the provisions of
the Company's Articles of Organization or Members Agreement; (ii)
conflict with, result in a breach of terms and conditions of, accelerate
any provision of, or constitute any default under any rule, trust
(constructive or otherwise), contract or agreement to which the Seller or
Company are now or may become a party, or is bound, or any order, rule or
regulation of any court or governmental authority or agency applicable to
any of them; (iii) violate, conflict with or constitute a breach of or
default under the provisions of any governmental permit or license or
other such instrument to which either of the Seller or the Company is a
party or by which Sellers or the Company is bound; or (iv) require any
affirmative approval, consent, authorization or other order, or action of
any court, governmental authority, regulatory body or third party, except
as specifically contemplated by this Agreement.
4.2. TAX MATTERS. Sellers and the Company agree not to file an amended
federal, foreign, state, county, local and other tax returns for any year prior
to the Closing. The Sellers and the Company have filed all federal, foreign,
state, county, local and other tax returns and reports required by law to be
filed prior to the date of this Agreement and all taxes, assessments, fees and
other governmental charges and any related penalties and interest have been
paid.
4.3. TITLE, PRIOR COMMITMENTS, LIENS, SECURITY INTERESTS. The
Membership Interests consist of all of the units of the Company which are issued
and outstanding. There are
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no rights held by any person to acquire any Membership Interests or economic
interest from or in the Company, whether in the form of warrants, options to
purchase convertible securities or any other rights to acquire an interest in
the Company. All of the outstanding Membership Interests of the Company have
been duly authorized and are validly issued, fully paid and nonassessable. None
of the outstanding Membership Interests of the Company have been issued in
violation of any preemptive right. The Sellers own the Membership Interests free
and clear of all liens, claims or encumbrances of every nature and kind. The
Membership Interests are not subject to any voting trust, proxy or similar
agreement with respect to the voting of the Company. Each Seller represents and
warrants that it does not currently have a security interest, lien, or other
encumbrance on the Membership Interests to secure the payment of a loan to it.
4.4. BROKER'S FEE. The Sellers are not parties to, or in any way
obligated under, any contract or other arrangement providing for the payment of
fees and expenses to any broker or finder in connection with the origination,
negotiation, execution or consummation of transactions contemplated in this
Agreement and agree to hold Purchasers, Shaikh and Xxxxxx harmless from and
against any broker claiming by or through them who makes a claim in respect of
these transactions.
4.5. DISCLOSURE. No representation or warranty by the Sellers in this
Agreement, or in connection with the transactions contemplated hereby, contain
or will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary to make the statements contained therein not
misleading.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF
PURCHASER, SHAIKH, AND XXXXXX
In order to induce the Sellers to sell the Membership Interests, the
Purchaser and/or Shaikh and Xxxxxx represent, warrant and agree that Section 5.1
through and including Section 5.6 are true and correct on the date hereof and
will remain true and correct through and including the Closing Date:
5.1. ORGANIZATION AND STANDING OF PURCHASER. The Purchaser is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Illinois, and has corporate power and authority to carry on
its business as it is now being conducted.
5.2. AUTHORITY. Purchaser, Shaikh, and Xxxxxx, and the persons
executing this Agreement on behalf of the Purchaser have the power and authority
to execute this Agreement and consummate the transactions contemplated hereby,
all necessary action having been properly taken to establish such authority.
This Agreement constitutes the valid and binding obligation of the Purchaser,
Shaikh and Xxxxxx, and is enforceable in accordance with its terms.
5.3. NO BREACH OF OTHER AGREEMENTS. The execution, delivery and
consummation of this Agreement will not (a) conflict with, result in a breach of
terms and conditions of, accelerate any provision of, or constitute any default
under any rule, trust (constructive or otherwise), contract or agreement to
which the Purchaser, Shaikh, or Xxxxxx is now a party or is bound or any order,
rule or regulation of any court or governmental authority or agency applicable
to the
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Purchaser, Shaikh, or Xxxxxx, respectively, or (b) violate or conflict with any
of the provisions of the Purchaser' s Articles of Incorporation or Bylaws.
5.4. TITLE; PRIOR COMMITMENTS; LIENS; SECURITY INTEREST. Xxxxxx and
Shaikh own the Bali Interest free and clear of all liens, claims or encumbrances
of every nature and kind.
5.5. BROKER'S FEE. The Purchaser, Shaikh, and Xxxxxx are not parties
to, or in any way obligated under, any contract providing for the payment of
fees and expenses to any broker or finder in connection with the origin,
negotiation, execution or consummation of this Agreement and agree to hold
Sellers harmless from and against any broker claiming by or through them who
makes a claim in respect of these transactions.
5.6. DISCLOSURE. No representation or warranty by the Purchaser,
Shaikh, and Xxxxxx in this Agreement, or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements contained therein not misleading.
ARTICLE VI.
INDEMNIFICATION
6.1. INDEMNITY BY SELLERS. The Sellers make and agree to the following
indemnifications to Purchaser:
the Sellers agree to pay, and shall protect, indemnify and hold the
Purchaser, its members, managers, officers, partners, employees, agents,
representatives, successors and assigns, harmless from and against any
and all causes of action, suits, penalties, losses, damages, claims and
expenses of any nature whatsoever (including reasonable attorneys' fees
and expenses and costs incurred in settlement) which may be imposed on,
incurred by, or asserted or threatened against the Purchaser by reason
of, in any way relating to or arising out of the inaccuracy of, or
omission from, any representation or warranty, any misrepresentation or
breach of any representation or warranty, or the breach or nonperformance
of any covenants made by the Sellers (including any schedule or exhibit)
or in any agreement, instrument or document of the Sellers delivered on
the Closing Date in connection with the Agreement; and
(a) Purchaser shall notify Sellers promptly in writing of any
claims for indemnification, but the failure so to notify Sellers shall
not impair the Purchaser's right to indemnification hereunder, except to
the extent the Sellers are prejudiced by such failure.
6.2. INDEMNITY BY PURCHASER. The Purchaser makes and agrees to the
following indemnifications to Seller:
(a) the Purchaser agrees to pay, and shall protect, indemnify
and hold the Sellers harmless from and against any and all causes of
action, suits, penalties, losses, damages, claims and expenses of any
nature whatsoever (including reasonable attorneys' fees and expenses and
costs incurred in settlement) which may be imposed on, incurred
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by, or asserted or threatened against the Sellers by reason of, in any
way relating to or arising out of the inaccuracy of, or omission from,
any representation or warranty, any misrepresentation or breach of any
representation or warranty, or the breach or nonperformance of any
covenants made by the Purchaser herein (including any schedule or
exhibit) or in any agreement, instrument or document of the Purchaser
attached as an exhibit hereto or delivered at the Closing Date in
connection with the Agreement;
(b) the Purchaser is acquiring the Company and its assets on an
"as is-where is" basis; and
(c) Sellers shall promptly notify Purchaser in writing of any
claims for indemnification, but the failure so to notify Purchaser shall
not impair Sellers' right to indemnification except to the extent
Purchaser is prejudiced by such failure.
6.3. CONDITIONS PRECEDENT TO CLOSING BY PURCHASER. The obligations of
the Purchaser under this Agreement are subject to the satisfaction of the
following conditions on or before the Closing Date, any one of which may be
waived by the Purchaser; provided, however, that such waiver may only be made by
a writing signed by the Purchaser:
(a) the representations and warranties of the Sellers shall
remain true, correct and complete;
(b) the Sellers shall have performed and observed all
covenants, agreements and conditions hereof to be performed or observed
by them prior to the Closing Date;
(c) the Sellers shall have delivered all documents required by
Section 3.2(a); and
(d) no court order shall have been entered or applied for or
any action or proceeding instituted by any third party who seeks to or
does enjoin, restrain or prohibit this Agreement or the consummation of
the transactions contemplated by this Agreement or recover damages in
connection therewith.
6.4. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS. The
obligations of the Sellers under this Agreement are subject to the satisfaction
of the following conditions on or before the Closing Date, any one of which may
be waived by the Sellers; provided, however, that such waiver may only be made
by a writing signed by the Sellers:
(a) the representations and warranties of the Purchaser, Shaikh
and Xxxxxx shall remain true, correct and complete;
(b) the Purchaser, Shaikh and Xxxxxx shall have performed and
observed all covenants, agreements and conditions hereof to be performed
or observed by Purchaser, Shaikh and Xxxxxx prior to the Closing Date;
(c) the Purchaser, Shaikh and Xxxxxx shall have delivered all
documents required by Section 3.2(b);
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(d) the Company shall have developed the Technology and
transferred, assigned and set over the Technology from the Company to the
Sellers in accordance with Section 3.3; and
(e) no court order shall have been entered or applied for or
any action or proceeding instituted by any third party who seeks to or
does enjoin, restrain or prohibit this Agreement or the consummation of
the transactions contemplated by this Agreement or seeks to or does
recover damages in connection therewith.
6.5. MAIL. All mail addressed to the Sellers which is received by
Purchaser following the Closing Date shall be opened by Purchaser and, if in the
Purchaser's reasonable discretion the mail pertains to the Sellers' affairs and
not to Purchaser's affairs, that mail shall be forwarded immediately to the
Sellers.
ARTICLE VII.
RELEASES
7.1. RELEASES.
Except for claims alleging breach of this Agreement the parties
agree to the conditions set for in this Section 7.1 ("Release"):
(a) Sellers, on behalf of themselves, their parent,
subsidiaries, directors, officers, employees, agents, representatives,
successors and assigns, hereby release and forever discharge the
Purchaser, its officers, directors, employees, agents, representatives,
successors and assigns, and the Company, its members, managers, officers,
employees, agents, representatives (the Release Purchaser Parties"), from
and against any and all claims, demands, actions, causes of action or
suits, at law or in equity, of whatever kind or nature, known or unknown,
which Sellers had or may have, now or in the future, against the Released
Purchaser Parties relating to the Membership Interests or the Company,
including claims for fees, loan repayments, trade receivables or
reimbursement of costs and expenses, the Company's business, or any of
the Terminated Agreements (defined below);
(b) Sellers, their respective directors, officers, employees,
agents, representatives, successors and assigns, and Xxxxxx Xxxx, and
Xxxxx Xxxxxx hereby release and forever discharge Shaikh and Xxxxxx from
and against any and all claims, demands, actions, causes of action or
suits, at law or in equity, of whatever kind or nature, known or unknown,
which Sellers, its directors, officers, employees, agents,
representatives, successors and assigns, and Xxxxxx Xxxx, and Xxxxx
Xxxxxx had or may have, now or in the future, against Xxxxxx or Shaikh,
including, without limitation, claims under the Terminated Agreements.
(c) Shaikh and Xxxxxx hereby release and forever discharge
Sellers, and Sellers' directors, officers, employees, agents,
representatives, successors and assigns, (collectively, the "Sellers'
Group"), and Xxxxxx Xxxx and Xxxxx Xxxxxx from and against any and all
claims, demands, actions, causes of action or suits, at law or in equity,
of
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whatever kind or nature, known or unknown, which Shaikh or Xxxxxx had or
may have, now or in the future, against the Sellers' Group, Xxxxxx Xxxx
and Xxxxx Xxxxxx, including, without limitation, claims under the
Terminated Agreements;
(d) Bali, its members, managers, officers, employees, agents,
and representatives (the "Bali Group") hereby release and forever
discharge Xxxxxx and Shaikh from and against any and all claims, demands,
actions, causes of action or suits, at law or in equity, of whatever kind
or nature, known or unknown, which the Bali Group had or may have, now or
in the future, against Xxxxxx and Xxxxxx relating to the Bali Interest or
any of the Terminated Agreements. Xxxxxx and Shaikh hereby release and
forever discharge the Bali Group from and against any and all claims,
demands, actions, causes of action or suits, at law or in equity, of
whatever kind or nature, known or unknown, which Xxxxxx or Xxxxxx had or
may have, now or in the future, against the Bali Group relating to the
Bali Interest or any of the Terminated Agreements.
(e) For purposes of the above releases, the term "Terminated
Agreements" shall mean the Employment Agreement entered into by and
between Shaikh and Bionutrics, the Employment Agreement entered into by
and between Xxxxxx and Bionutrics, the Master Agreement, as described in
the recitals, the Membership Interest Redemption Agreement by and between
Xxxxxx and InCon Holdings, LLC dated October 27, 1997 (collectively, the
"Terminated Agreements").
7.2. ACKNOWLEDGEMENTS. Each of the releasing parties further states
that they or their duly authorized representatives have read the respective
Release set forth in Section 7.1, that they understand that these are general
releases, that each intends legally to be bound by the applicable Release, and
that each of them has the legal power and authority to execute and agree to the
applicable Release.
7.3. NO TRANSFER. Each of the releasing parties represents and warrants
that the respective releasing party has not assigned or transferred, in whole or
in part, any claim, right, demand or cause of action which that releasing party
may now have or may have had or claims to have, of whatever kind or nature,
against any other party, to any person, firm, corporation, or other entity, in
any manner, including but not limited to assignment or transfer by subrogation
or by operation of law.
7.4. FUTURE ACTIONS. Each party agrees never to institute, directly or
indirectly, any action or proceeding of any kind against any other party to
enforce a claim which is released under this Section 7. In the event of any such
claim, the instituting party agrees to reimburse the other party for all costs
incurred in defending the claim, including reasonable attorneys' fees. The
prohibition contained in this Section 7 shall not apply to claims for breach of
this Agreement.
7.5. TRANSFER OF MEMBERSHIP INTERESTS. The transfer of Membership
Interests provided for under Section 1.1 of this Agreement, is, in addition to
the satisfaction of all of the other clauses and provisions of this Agreement,
subject to the consent to and approval of this Agreement by the following
parties:
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(a) The Board of Directors of Bionutrics, and;
(b) The Holders of that certain Non-Revolving Note by and
between Bionutrics and the following parties:
(i) Xxxxxxx X. XxXxxxxxx
(ii) Xxxxxxx Xxxxxx
(iii) Xxxxxxxx Xxxxxxxxxx
(iv) Ropart Investments
(v) HealthSTAR Communications
(vi) HealthSTAR Holdings
(vii) Xxxxxx X. Xxxx
(viii) Xiagen
ARTICLE VIII.
MISCELLANEOUS
8.1. ASSIGNMENT. The rights, duties and privileges of Sellers hereunder
shall not be transferred or assigned in whole or in part without the prior
written consent of the Purchaser.
8.2. ENTIRE AGREEMENT. This Agreement and the documents, schedules and
exhibits referred to herein and to be delivered pursuant to this Agreement set
forth the entire agreement among the parties and merge all prior discussions and
agreements among them. None of the parties shall be bound by any condition,
definition, warranty or representation with respect to any term or condition
other than those provided for in this Agreement or the documents, schedules and
exhibits referred to herein or delivered pursuant to this Agreement or as
amended by subsequent agreement in writing signed by the parties or a duly
authorized officer or representative of the parties to this Agreement. This
Agreement may not be amended except by a writing signed by all of the parties
hereto.
8.3. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, personal representatives,
successors and permitted assigns.
8.4. NOTICE. All notices, requests, demands or other communications
given under or in connection herewith shall be effective only if in writing and
hand delivered, mailed by certified or registered U.S. Mail, postage prepaid,
return receipt requested, or delivered by recognized overnight delivery service
(E.G., FedEx or UPS), addressed as follows:
if to Sellers: Asia Pacific Investment Holdings, Ltd.
Facsimile No.:
and
InCon Technologies, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
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if to Company: InCon Processing, L.L.C.
000 Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
if to Purchaser: Incon International, Inc.
000 Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxxx X. Xxxxxxxxx
Chuhak & Xxxxxx, P.C.
00 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Any party may change its address for notice pursuant to this Section 8.4 upon
written notice to the other parties.
8.5. INVALID PROVISION. In the event that any provision of this
Agreement is held to be invalid or illegal for any reason, such determination
shall not effect the remaining provisions which shall be construed and enforced
as if the illegal or invalid provision had never been included.
8.6. APPLICABLE LAW. This Agreement shall be subject to and governed by
the laws of the State of Illinois.
8.7. PRONOUNS. The singular form shall be considered to denote the
plural and the masculine form the feminine or neuter if required hereunder.
8.8. DESCRIPTIVE HEADINGS. All section headings, titles and subtitles
contained herein are inserted for convenience of reference only and are to be
ignored in any construction of the provisions hereof.
8.9. LEGAL ACTION. In any action at law or in equity arising out of
this Agreement and the transactions contemplated hereunder, the prevailing party
shall be entitled to reasonable attorneys' fees and court costs in addition to
any other relief to which it may be entitled.
8.10. WAIVER. Any party may waive any term, condition or requirement
under this Agreement or the exhibits or schedules hereto which is intended for
its own benefit, and any waiver of any term or condition of this Agreement or
the exhibits or schedules hereto shall not operate as a waiver of any other
breach of such term or condition, nor shall any failure to enforce any provision
hereof or of the exhibits or schedules hereto operate as a waiver of such
provision or of any other provision hereof or the exhibits or schedules hereto.
8.11. FURTHER ASSURANCES. Each party agrees to perform any further acts
and to execute and deliver any further documents which may be reasonably
necessary to give effect to the provisions of this Agreement.
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8.12. EXPENSES. Each of the parties shall pay its own expenses in
connection with this Agreement and the consummation of the transactions
contemplated hereunder.
8.13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
8.14. RECITALS. The Recitals contained in this Agreement are hereby
incorporated and made a part of the terms and mutual covenants and agreements
contained in this Agreement.
8.15. SURVIVAL. The representatives and warranties contained in this
Agreement or in the instruments or other documents required to be delivered
hereunder shall survive the Closing.
8.16. FACSIMILE. A facsimile signature shall be treated the same as an
original signature for the purposes of this Agreement and all other documents
and agreements relating to this transaction.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PURCHASER: SELLERS:
INCON INTERNATIONAL, INC., INCON TECHNOLOGIES, INC.,
an Illinois corporation a Delaware corporation
By: ________________________________ By: ____________________________________
Print Name:_________________________ Print Name: ____________________________
Title: _____________________________ Title: _________________________________
ASIA PACIFIC INVESTMENT HOLDINGS, LTD.,
a British Virgin Islands Company
By: ____________________________________
Print Name: ____________________________
Title: _________________________________
BALI:
BALI HOLDINGS, LLC, a Delaware
limited liability company
By: ________________________________
Print Name: ________________________ __________________________
Title: _____________________________ X.X. Xxxxxx, individually
BIONUTRICS:
BIONUTRICS, INC., a Nevada corporation
By: _______________________________ ___________________________
Print Name: ________________________ Xxxx X. Xxxxxx, individually
Title: ____________________________
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The undersigned hereby execute this Agreement for release purposes only,
as set forth in Article VII hereof.
-----------------------------------
Xxxxxx X. Xxxx, individually
-----------------------------------
Xxxxx Xxxxxx, individually
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