EXHIBIT 10.1
LICENSE TERMINATION AND ASSET TRANSFER AGREEMENT
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THIS LICENSE TERMINATION AND ASSET TRANSFER AGREEMENT (this
"Agreement") is made and entered into as of June 30, 2009 (the "Effective
Date"), by and between Smoky Market Foods, Inc., a Nevada corporation ("Buyer"),
and Smoky Systems, LLC, a Nevada limited liability company ("Seller").
RECITALS
WHEREAS, Seller and Buyer have entered into an Amended and Restated
License Agreement dated December 15, 2006 (the "License Agreement"), pursuant to
which Buyer licenses from Seller the exclusive right to use certain recipes,
tangible assets and marks associated with the production of smoked meat
products; and
WHEREAS, Seller has determined to liquidate and distribute its assets;
and
WHEREAS, in connection with such liquidation, Seller desires to sell to
Buyer, and Buyer desires to purchase from seller, an ownership interest in all
of the assets licensed under the License Agreement and any related assets in
exchange for common stock, $.001 par value ("Common Stock") of Buyer, all as
more particularly set forth below;
AGREEMENT
NOW, THEREFORE, in consideration of the respective representations and
covenants contained herein and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE 1
SALE OF ASSETS; CLOSING
1.1 ASSETS. Subject to the terms and conditions of this Agreement, at
the Closing, Seller shall sell, transfer, assign, and deliver to Buyer, and
Buyer shall purchase from Seller, all right, title and interest in and to all of
the following assets other than the Excluded Assets (the "Assets"):
(a) all tangible personal property owned by Seller, including
without limitation all computer hardware, machinery, equipment,
furniture and inventory (the "Tangible Assets");
(b) all contracts, leases, licenses and other agreements
listed on Exhibit A to the Assignment and Assumption Agreement attached
as Exhibit C to this Agreement (the "Contracts");
(c) all intellectual property owned or licensed by Seller,
service marks, trademarks, patents, copyrights, United States, state
and other applications and registrations for and with respect to any of
the foregoing and renewals and continuation thereof, in each case with
the goodwill symbolized thereby and associated therewith, business
information, trade secrets, royalty rights, confidential information,
formulas, processes, techniques, know-how, licenses and other rights to
use any of the foregoing, any and all income, royalties, damages,
claims and payments now or hereafter receivable with respect to any of
the foregoing and all rights, including all rights to xxx, relating
thereto, all licenses, permits, permissions, and authorizations,
consents, easements, rights, of way, software, domain names, telephone
numbers, websites, e-mail address, goodwill, going concern value, and
any and all other intangible assets owned by Seller (the "Intangible
Assets");
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(d) all real property, leaseholds and subleaseholds therein,
improvements, fixtures, and fittings thereon, and easements,
rights-of-way, and other appurtenants thereto (such as appurtenant
rights in and to public streets) (the "Real Property Assets"); and
(e) all franchises, approvals, permits, licenses, orders,
registrations, certificates, variances, and similar rights obtained
from governments and governmental agencies.
The Assets shall not include (i) cash, bank and investment accounts, accounts
receivable, notes receivable, tax rebates and other current assets of Seller,
(ii) any shares of Common Stock or other securities owned by Seller, (iii) any
rights with respect to any employees or former employees of Seller or (iv) the
rights and obligations of Seller under this Agreement (the "Excluded Assets").
1.2 EXCLUSION OF LIABILITIES.
(a) On the Closing Date and subject to the terms and
conditions of this Agreement, Buyer agrees to assume and become
responsible for obligations of the Seller under the Contracts arising
and accruing after, and relating exclusively to use of the Contracts
after, the Closing Date ("ASSUMED LIABILITIES").
(b) Seller and Shareholder understand and acknowledge that,
except for the Assumed Liabilities, Buyer shall not assume or have any
responsibility, liability or obligation for any obligation, commitment,
responsibility, or any other debt, duty, or liability (including any
unknown, undisclosed, unfixed, unliquidated, unsecured, unmatured,
unaccrued, unasserted, contingent, conditional, inchoate, implied,
vicarious, joint, several or secondary liability) (each a "Liability")
of any kind or nature incurred by Seller or arising, accruing, or
related to the operation of the Seller's business or actions or
omissions of Seller. Seller agrees to indemnify and hold Buyer harmless
from all Liabilities, losses, costs or expenses, including reasonable
attorney's fees, incurred by Buyer as a result of any claim made
against Buyer attributable to any Liability of Seller other than the
Assumed Liabilities.
(c) The Assets shall be transferred to Seller free and clear
of any lien, pledge, hypothecation, charge, mortgage, deed of trust,
security interest, encumbrance, equity, trust, equitable interest,
claim, easement, right-of-way, servitude, right of possession, lease
tenancy, license, encroachment, burden, intrusion, covenant,
infringement, interference, proxy, option, right of first refusal,
community property interest, legend, defect, impediment, exception,
condition, restriction, reservation, limitation, impairment,
imperfection of title and restriction on the possession, use, exercise
or transfer of any other attribute of ownership, whether based on or
arising from common law, constitutional provision, statute, contract or
otherwise (each an "Encumbrance") other than such limitations as arise
under the express terms of the Contracts and relate solely to any
Assets used or purchased pursuant to the respective Contract.
1.3 TERMINATION OF LICENSE AGREEMENT. As the Closing, the License
Agreement is automatically terminated.
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1.4 CONSIDERATION FOR THE ASSETS. In consideration for the transfer of
the Assets and the termination of the License Agreement, Buyer shall issue to
Seller at the Closing 3,500,000 shares of Common Stock (the "SHARES").
1.5 CLOSING. The parties agree to close the purchase and sale
contemplated by this Agreement (the "CLOSING") on a date hereafter that is
mutually acceptable to such parties (the "CLOSING DATE"). The parties shall use
good faith to close the transactions contemplated hereby on or about June 30,
2009. The Closing shall take place at the offices of Buyer at 000 Xxxxxxx Xx.
#000, Xxxxx, XX 00000 (or, if agreed upon by the parties, by the exchange of
closing deliveries by mail and/or facsimile) on the Closing Date and shall be
effective as of 12:01 a.m. on the Closing Date.
1.6 CLOSING DELIVERIES.
(a) At the Closing, Seller shall deliver to Buyer the
following:
(i) an executed Xxxx of Sale in substantially the
form of Exhibit A, transferring to Buyer the Tangible Assets,
free and clear of means any Encumbrance.
(ii) an executed counterpart of an Assignment
Agreement in substantially the form of Exhibit B, assigning to
Buyer the Assets (other than the Tangible Asset and
Contracts), including the Intangible Assets, free and clear of
all Encumbrances;
(iii) an executed counterpart of an Assignment and
Assumption Agreement in substantially the form of Exhibit C,
assigning to Buyer the Contracts, free and clear of all
Encumbrances; and
(ivi) such other documents, agreements, assignments,
instruments and certificates as may be required by this
Agreement or as may be reasonably requested by Buyer to carry
out the terms and conditions of this Agreement.
(b) At the Closing, Buyer shall deliver to Seller:
(i) certificates representing the Shares, with such
legends as are contemplated by Section 1.9;
(ii) an executed counterpart of an Assignment
Agreement in substantially the form of Exhibit B;
(iii) an executed counterpart of an Assignment and
Assumption Agreement in substantially the form of Exhibit C;
and
(iv) such other documents, agreements, assignments,
instruments and certificates as may be required by this
Agreement or as may be reasonably requested by Seller or
Shareholders to carry out the terms and conditions of this
Agreement.
1.7 TAX CONSEQUENCES. The parties understand and acknowledge that the
transaction contemplated by this Agreement is not a tax free reorganization
within the meaning of Section 368(a) of the Code.
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1.8 POSSESSION. On or within one business day of the Closing Date,
Seller shall deliver to Buyer possession of all of the Tangible Assets and
evidences of Intangible Assets and Contracts.
1.9 LEGENDS. Each Share will be imprinted with a legend substantially
in the following form:
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. THE TRANSFER OF THE SECURITY REPRESENTED BY THIS INSTRUMENT IS
SUBJECT TO THE CONDITIONS SPECIFIED IN THE LICENSE TERMINATION AND
ASSET TRANSFER AGREEMENT, DATED AS OF JUNE 30, 2009, AMONG THE ISSUER
OF SUCH SECURITY (THE "COMPANY") AND THE OTHER PARTIES REFERRED TO
THEREIN, AS AMENDED AND MODIFIED FROM TIME TO TIME, AND THE COMPANY
RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITY UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF
SUCH CONDITIONS SHALL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE
HOLDER HEREOF UPON WRITTEN REQUEST."
Each holder desiring to transfer a Share first must furnish Buyer with (i) a
written opinion reasonably satisfactory to Buyer in form and substance from
counsel reasonably satisfactory to the Buyer by reason of experience to the
effect that the holder may transfer the Share as desired without registration
under the Securities Act of 1933, as amended (the "Securities Act") and (ii) a
written undertaking executed by the desired transferee reasonably satisfactory
to Buyer in form and substance agreeing to be bound by the restrictions on
transfer contained herein (to the extent required by the Securities Act).
ARTICLE 2
REPRESENTATIONS OF SELLER
For the purpose of inducing Buyer to enter into this Agreement and with
the knowledge that Buyer will rely on the following representations, as of the
Effective Date and as of Closing Date, Seller represent to Buyer as follows:
2.1 AUTHORITY. Seller has full limited liability company power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly executed and delivered by Seller and
constitutes the legal, valid and binding agreement of Seller enforceable against
Seller in accordance with its terms, except as such enforceability may be
limited by bankruptcy and the laws affecting the enforcement of creditors'
rights generally or equitable principles. All manager, member and other company
approvals necessary to approve this Agreement and the transactions contemplated
thereby on the part of Seller have been obtained.
2.2 CONSENTS AND APPROVALS; NO VIOLATION. Neither the execution,
delivery and performance of this Agreement, nor the consummation of the
transactions contemplated hereby will (a) violate or conflict with, (b) result
in, or require the creation or imposition of, any Encumbrance upon or with
respect to any of the Assets pursuant to, (c) require Seller to make any filing
or registration with, give notice to, or obtain any consent, approval or
authorization from any foreign governmental authority, the United States of
America, any State of the United States of America, any local authority and any
political subdivision of any of the foregoing, any multi-national organization
or body, any agency, department, commission, board, bureau, court or other
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authority thereof, or any quasi-governmental or private body exercising, or
purporting to exercise, any executive, legislative, judicial, administrative,
police, regulatory or taxing authority or power of any nature (each a
"Governmental Authority") or any other individual, entity, or Governmental
Authority (each a "Person") (including creditors) in accordance with, (d) result
in a breach of, constitute (with or without due notice or lapse of time or both)
a default under, or give rise to any right of termination, cancellation or
acceleration under, any provision of the articles of organization or operating
agreement of the Seller, any Legal Requirement (as defined below) binding upon
Seller, any contract, agreement, license, lease, instrument or other arrangement
binding upon Seller, or any Governmental Authorization or any other instrument
or obligation to which Seller is a party, by which Seller or any of the Assets
may be bound or to which Seller or any of the Assets may be subject. For
purposes of this Agreement "Legal Requirement" means any law (including any
environmental law), statute, ordinance, decree, requirement, Order, treaty,
proclamation, convention, rule or regulation (or interpretation of any of the
foregoing) of, and the terms of any Governmental Authorization issued by, any
Governmental Authority; "Governmental Authorization" means any permit (including
any environmental permit), license, franchise, approval, certificate, consent,
ratification, permission, confirmation, endorsement, waiver, certification,
registration, transfer, qualification or other authorization issued, granted,
given or otherwise made available by or under the authority of any Governmental
Authority or pursuant to any Legal Requirement; and "Order" means any order,
judgment, injunction, edict, decree, ruling, pronouncement, determination,
decision, opinion, sentence, subpoena, consent decree, writ or award issued,
made, entered or rendered by any court, administrative agency or other
Governmental Authority or by any arbitrator
2.3 TANGIBLE ASSETS. The Tangible Assets include all of the Tangible
Assets owned by Seller (other than Excluded Assets). All of the Tangible Assets
are merchantable, in material compliance with all requirements of all governing
laws and regulations, and in good working order and repair. Other than as set
forth in the preceding sentence, Seller makes no representation or warranty
concerning the condition and functionality of the Tangible Assets.
2.4 CONTRACTS. The Contracts include all of the contracts, whether
written or oral, to which Seller is a party other than (a) Excluded Assets, (b)
this Agreement and (c) Contracts not used or useful in the operation of a
smoked-food business. No amounts have been paid to Seller or any of its
affiliates, in advance in the form of fees or compensation with respect to any
Contract. No amount is owed under any Contract by Seller to any Person for goods
or services received by or on behalf of Seller other than amounts accrued during
the past 60 days, all of which will be paid by Seller within 30 days of Closing.
True, correct and complete copies of each Contract, or with respect to oral
agreements written summaries of the material terms thereof, have been delivered
to Buyer.
2.5 TITLE TO ASSETS AND RELATED MATTERS. Seller owns and has good and
marketable title in and to all of the Assets free and clear of all Encumbrances
and the claims or rights of any other Person and has the full legal power and
authority to transfer the Assets to Buyer. Upon Seller's transfer of the Assets
at Closing as contemplated by this Agreement, Buyer shall acquire right, title,
and interest to the Assets, free of any adverse claim, Encumbrance, right, or
interest of any nature whatsoever. The Assets include all of the Assets licensed
or made available to Buyer under the License Agreement or previously used or
relied upon by Seller in the operation of the business of Seller.
2.6 COMPLIANCE WITH LAWS. Seller is in compliance with all Legal
Requirements applicable to it, the ownership of the Assets, or the operation of
the Business or any combination thereof, and Seller does not have any basis to
expect, nor has it received, any Order, notice, or other communication from any
Governmental Authority or other Person of any alleged, actual, or potential
violation of or failure to comply with any such Legal Requirement. Seller has
maintained and currently has in full force and effect all required, appropriate
and customary licenses and Governmental Authorizations to conduct its business.
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2.7 BANKRUPTCY. Seller has not made any assignment for the benefit of
creditors, filed any petition in bankruptcy, been adjudicated insolvent or
bankrupt, petitioned or applied to any tribunal for any receiver, conservator or
trustee of any of them or any of their property or assets, or commenced any
action or proceeding under any reorganization arrangement, readjustment of debt,
conservation, dissolution or liquidation law or statute or any jurisdiction; and
no such action or proceeding has been commenced or threatened against Seller or
any Affiliate of Seller by any creditor, claimant, Governmental Authority or any
other Person.
2.8 INTELLECTUAL PROPERTY. The Assets include all inventions, patents,
improvements related to patented or unpatented inventions, trademarks and trade
names service marks, assumed names, trade dress, copyrights, United States,
foreign, state and other applications and registrations for and with respect to
any of the foregoing and renewals and continuation thereof, in each case with
the goodwill symbolized thereby and associated therewith, software, domain
names, websites, e-mail addresses, and other Intellectual Property owned by
Seller or used by Seller in its business (collectively, the "Intellectual
Property"). Seller has, and Buyer will have after the Closing, the unencumbered,
exclusive right to use, commercialize, exploit and transfer such Intellectual
Property. Seller's use of the Intellectual Property and Intangible Assets does
not violate or infringe the rights of any other Person, and the transfer to
Buyer of such rights, will not violate or infringe the rights of any other
Person. To the best knowledge of Seller, no other Person is infringing the right
of Seller with respect to any Intellectual Property or other Intangible Asset
necessary for the conduct of the Business. Seller is not in default (nor with
the giving of notice or lapse of time or both would be in default) under any
license to use the Intellectual Property or Intangible Assets.
2.9 SECURITIES LAW. Seller (i) understands that the Shares have not
been, and will not be, registered under the Securities Act, or under any state
securities laws, and are being offered and sold in reliance upon federal and
state exemptions for transactions not involving any public offering, (ii) is
acquiring the Shares solely for its own account for investment purposes, and not
with a view to the distribution thereof, (iii) is a sophisticated investor with
knowledge and experience in business and financial matters and is managed by a
sophisticated investor who is an officer and director of Buyer, (iv) is able to
bear the economic risk and lack of liquidity inherent in holding the Shares, (v)
acknowledges that the Shares are subject to the restrictions on transfer set
forth in Section 1.9 of this Agreement, and (vii) in making the decision to
acquire the Shares has relied solely upon (A) representations and warranties of
the Buyer contained in this Agreement, and (C) information contained in the
Annual Report on Form 10-K for the year ended December 31, 2008, as amended (the
"Most Recent Form 10-K") filed by Buyer with the Securities and Exchange
Commission and any Quarterly Reports on Form 10-Q and Current Reports on Form
8-K filed by Buyer since January 1, 2009 with the Securities and Exchange
Commission.
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ARTICLE 3
REPRESENTATIONS OF BUYER
For the purpose of inducing Seller to enter into this Agreement and
with the knowledge that Seller will rely on the following representations, as of
the Closing Date, Buyer represents and warrants to Seller as follows:
3.1 AUTHORITY. Buyer has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. This Agreement
has been duly and validly executed and delivered by Buyer and constitutes the
legal, valid and binding agreement of Buyer.
3.2 ORGANIZATION, EXISTENCE, GOOD STANDING AND CAPITALIZATION. Buyer
(i) is a corporation validly existing and in good standing under the laws of the
State of Nevada, (ii) is qualified to do business in every jurisdiction in which
its ownership of property or conduct of business requires it to qualify, and
(iii) has full company power and authority to carry on its business as now being
conducted, to own and operate its properties and assets.
3.3 LITIGATION. Buyer is not subject to any Order affecting the
business or assets of Buyer or Buyer's ability to carry out the terms of this
Agreement. There are no Proceedings pending and, to the knowledge of Buyer, or
threatened against Buyer which would have a material adverse affect on the
business or operations of Buyer or affect Buyer's to carry out the terms of this
Agreement.
3.4 CONSENTS AND APPROVALS; NO VIOLATION. Neither Buyer's execution and
delivery of this Agreement, nor Buyer's consummation of the transactions
contemplated hereby will: (i) violate or conflict with, result in, or require
the creation or imposition of, any Encumbrance upon or with respect to any of
the Assets pursuant to, (ii) require Buyer to make any filing or registration
with, give notice to, or obtain any consent, approval or authorization from any
Governmental Authority or any other Person (including creditors) (other than
filings or notices required under the Securities Act and the Securities Exchange
Act of 1934, as amended), (iii) result in a breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, any provision of the
Articles of Incorporation or bylaws of the Buyer, any Legal Requirement binding
upon Buyer, any contract, agreement, license, lease, instrument or other
arrangement, or any Governmental Authorization or other instrument or obligation
to which Buyer is a party, or by which Buyer may be bound or to which any of its
assets may be subject.
3.5 BANKRUPTCY. Buyer has not made any assignment for the benefit of
creditors, filed any petition in bankruptcy, been adjudicated insolvent or
bankrupt, petitioned or applied to any tribunal for any receiver, conservator or
trustee of any of them or any of their property or assets, or commenced any
action or proceeding under any reorganization arrangement, readjustment of debt,
conservation, dissolution or liquidation law or statute or any jurisdiction; and
no such action or proceeding has been commenced or threatened against Buyer or
any Affiliate of Buyer by any creditor, claimant, Governmental Authority or any
other Person.
3.6 VALID ISSUANCE OF SHARES. When issued, sold and delivered in
accordance with the terms hereof, the Shares will be duly and validly issued,
fully-paid and nonassessable.
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ARTICLE 4
COVENANTS OF PARTIES AFTER CLOSING
Each of the parties hereto agrees as follows with respect to the period
beginning immediately after the Closing:
4.1 FURTHER ASSURANCES OF SELLER. Seller will, upon the request of
Buyer from time to time after the Closing, execute and deliver, and use their
best efforts to cause other Persons to execute and deliver, all such further
documents and instruments, and will do or use their best efforts to cause to be
done such other acts, as Buyer may reasonably request in order to consummate
more completely and make effective the transactions contemplated hereby.
4.2 PRORATION OF TAXES/COSTS. All personal property taxes and
assessments for 2009 pertaining directly to the Assets, if any, shall be
prorated as of the Closing Date.
4.3 PAYMENT OF COSTS. Each of Buyer and Seller shall bear his or its
own costs and expenses (including, without limitation, fees and expenses of
business brokers, legal counsel, accountants and other facilitators and
advisors, except as otherwise specifically set forth herein) incurred at any
time in connection with this Agreement and the transactions contemplated hereby.
4.4 DEFAULT. If Seller shall breach any of Seller's representations
contained in this Agreement, Buyer shall give written notice of such breach to
Seller shall have thirty (30) days after receipt of such notice to cure the
default or breach. If Seller shall not cure such default or breach within such
thirty (30) day cure period, Buyer shall be entitled to pursue any remedy
available to Buyer. If Buyer shall breach any of Buyer's representations
contained in this Agreement, Seller shall give written notice of such breach to
Buyer shall have thirty (30) days after receipt of such notice to cure the
default or breach. If Buyer shall not cure such default or breach within such
thirty (30) day cure period, Seller shall be entitled to pursue any remedy
available to Seller.
ARTICLE 5
MISCELLANEOUS
5.1 SURVIVAL OF REPRESENTATIONS. All representations of the parties
hereto shall survive the Closing and continue for a period of two (2) years.
5.2 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified
or supplemented only by written agreement signed by the parties hereto.
5.3 WAIVER; CONSENTS. Any failure of a party to comply with any
obligation, covenant, agreement or condition herein may be waived by each party
affected thereby only by a written instrument signed by the party granting such
waiver. No waiver, or failure to insist upon strict compliance, by any party of
any term or condition or any breach of any term or condition contained in this
Agreement, in any one or more instances, shall be construed to be a waiver of,
or estoppel with respect to, any other term or condition or any other breach of
the same. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver.
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5.4 TERMINATION. Certain of the parties may terminate this Agreement as
provided below:
(a) Buyer and the Seller may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(b) Buyer may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing (A) in the event the
Seller has breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, Buyer has notified the Seller of the
breach, and the breach has continued without cure for a period of 10 days after
the notice of breach or (B) if the Closing shall not have occurred on or before
June 30, 2009 (unless the failure results primarily from the Buyer or Buyer
itself breaching any representation, warranty, or covenant contained in this
Agreement); and
(c) Seller may terminate this Agreement by giving written
notice at any time prior to the Closing (A) in the event the Buyer or Buyer has
breached any material representation, warranty, or covenant contained in this
Agreement in any material respect, the Seller has notified Buyer of the breach,
and the breach has continued without cure for a period of 10 days after the
notice of breach or (B) if the Closing shall not have occurred on or before June
30, 2009 (unless the failure results primarily from the Seller itself breaching
any representation, warranty, or covenant contained in this Agreement).
If any party terminates this Agreement pursuant to this Section 5.4, all rights
and obligations of the parties hereunder shall terminate without any liability
of any Party to any other Party (except for any Liability of any Party then in
breach, which shall survive termination).
5.5 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when (i) delivered
personally, (ii) sent by facsimile (with receipt confirmed), (iii) received by
the addressee, if sent by Express Mail, Federal Express or other express
delivery service (receipt requested) or (iv) three (3) days after being sent by
regular mail in each case to the other party at the following addresses and
facsimile numbers (or to such other address or facsimile number for a party as
shall be specified in writing; provided that notices of a change of address or
facsimile number shall be effective only upon receipt thereof):
if to Seller, to:
Smoky Markets Foods, Inc.
000 Xxxxxxx Xx. #000, Xxxxx, XX 00000
Facsimile: _______________
Attn: Chief Executive Officer
if to Buyer, to:
Smoky Systems, LLC
000 Xxxxxxx Xx. #000, Xxxxx, XX 00000
Facsimile: _______________
Attn: Manager
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5.6 ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any Party
without the prior written consent of the other Party.
5.7 SEVERABILITY. Any provision hereof prohibited by or deemed unlawful
or unenforceable under any applicable law of any jurisdiction shall, as to such
jurisdiction, be ineffective without affecting any other provision of this
Agreement or the same provision in any other jurisdiction. To the full extent,
however, that the provisions of such applicable law may be waived, they are
hereby waived to the end that this Agreement be deemed to be a valid and binding
agreement enforceable in accordance with its terms. In the event that any term
or provision of this Agreement shall be held invalid by a competent court or
government agency, the remainder of this Agreement shall not be affected thereby
and the parties hereto shall continue to be bound by the remaining terms hereof.
In such event, the relevant term or provision (or should such term(s) or
provision(s) be a crucial element of this Agreement, then the entire Agreement)
shall be renegotiated by the parties in a good faith effort to achieve mutual
agreement consistent with such holding and the parties shall continue to perform
under this Agreement in a manner consistent with its intent and objectives.
5.8 GOVERNING LAW. This Agreement shall be deemed to have been executed
in the State of California and shall be governed by the laws of the State of
California, (regardless of the laws that might otherwise govern under applicable
California principles of conflicts of law) as to all matters, including matters
of validity, construction, effect, performance, and remedies. The parties agree
to submit to the jurisdiction of the courts located within Santa Xxxx County in
the State of California and any United States District Court within the State of
California, any claims or lawsuits arising form this Agreement, and waive any
objections based on inconvenient forum.
5.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement. This Agreement may be
executed by facsimile or .pdf signatures, each of which will be deemed an
original.
5.10 ENTIRE AGREEMENT. This Agreement, including the instruments,
memoranda, certificates, schedules, exhibits, and other documents referred to
herein, embodies the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, representations, covenants, or undertakings other than those expressly
set forth or referred to herein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
5.11 ATTORNEYS' FEES. If any party hereto institutes a Proceeding
against any other party hereto for a claim arising out of or to enforce this
Agreement, the party that prevails by enforcing this Agreement shall be entitled
to recover reasonable attorneys' fees, costs and expenses incurred, in addition
to any other relief to which they may be entitled.
5.12 CONSTRUCTION. Whenever the context may require, any pronoun used
herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns, pronouns and verbs shall include the plural and vice
versa. Each of the foregoing genders and plurals is understood to refer to a
corporation (including a non-profit corporation), limited liability company,
general partnership, limited partnership, joint venture, joint stock
association, estate, trust, cooperative, foundation, union, syndicate, league,
consortium, coalition, committee, society, firm, company or other enterprise,
association, organization or entity of any nature, other than a Governmental
Authority, when the context so requires. The boldfaced and underlined section
descriptions shall be and are for reference only and shall not be deemed to
alter to limit the meaning of this Agreement in any way.
10
5.13 NONEXCLUSIVELY OF REMEDIES. The rights and remedies of the parties
hereto shall not be mutually exclusive, and the exercise of one or more of the
provisions of this Agreement shall not preclude the exercise of any other
provision
5.14 RISK OF LOSS. Seller shall retain all risk of loss with respect to
the Assets until possession of the Assets has been conveyed to Buyer at or
following Closing.
[intentionally left blank; signature pages follow]
11
IN WITNESS WHEREOF, each of the parties hereto has caused this License
Termination and Asset Transfer Agreement to be executed on its behalf as of the
date first above written.
"BUYER"
Smoky Market Foods, Inc.
a Nevada corporation
By: /s/_______________________________
Its: _________________________________
"SELLER"
Smoky Systems, LLC,
a Nevada limited liability company
By: /s/_______________________________
Its: _________________________________
EXHIBIT A
XXXX OF SALE
[See attached]
XXXX OF SALE
THIS XXXX OF SALE (this "Xxxx of Sale") is executed as of June 30, 2009
by Smoky Systems, LLC, a Nevada limited liability company ("Seller"), in favor
of Smoky Market Foods, Inc., a Nevada corporation ("Buyer"). Each term used but
not defined herein shall have the meaning ascribed thereto under that certain
License Termination and Asset Transfer Agreement dated as of June 30, 2009 to
which Buyer and Seller are parties (the "Purchase Agreement").
1. Assignment of Assets. Seller, for and in consideration of Ten and
No/100 Dollars ($10.00) and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Seller, hereby assigns,
transfers, sets over and delivers to Buyer all right, title and interest in and
to the Assets, including the Tangible Assets.
2. Binding Effect. This Xxxx of Sale shall be binding upon and inure to
the benefit of Seller and Buyer and their respective heirs, executors,
administrators, successors and assigns.
3. No Modification. This Xxxx of Sale is made pursuant to the terms of
the Purchase Agreement and does not create any additional obligations,
covenants, representations and warranties or alter or amend any of the
obligations, covenants, representations and warranties contained in the Purchase
Agreement. The provisions of the Purchase Agreement shall survive the execution
and delivery of this Xxxx of Sale. In the event of any inconsistency between
this Xxxx of Sale and the Purchase Agreement, the Purchase Agreement shall
control.
4. Construction. The headings of the sections and subsections of this
Xxxx of Sale are inserted as a matter of convenience and for reference purposes
only and in no respect define, limit or describe the scope of this Xxxx of Sale
or of the intent of any section or subsection.
5. Facsimile. A facsimile copy of this Xxxx of Sale shall be valid as
an original.
6. Choice of Law. This Xxxx of Sale shall be governed by and construed
in accordance with the domestic laws of the State of California without giving
effect to any choice or conflict of law provision or rule (whether of the state
of California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the state of California.
IN WITNESS WHEREOF, the undersigned executes this Xxxx of Sale as of
the date first written above.
"SELLER"
Smoky Systems, LLC,
a Nevada limited liability company
By: _______________________________
EXHIBIT B
ASSIGNMENT AGREEMENT FOR INTANGIBLE ASSETS AND RECORDS
[See attached]
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Assignment") is entered into as of the
19th day of June 2009 by Smoky Systems, LLC, a Nevada limited liability company
("Assignor"), in favor of Smoky Market Foods, Inc., a Nevada corporation
("Assignee"). All capitalized terms not otherwise specifically defined herein
shall have the meanings set forth in that certain License Termination and Asset
Transfer Agreement dated as of June 30, 2009, to which Assignor and Assignee are
parties (the "Purchase Agreement").
WHEREAS, pursuant to the Purchase Agreement, Assignor has agreed to
assign to Assignee the Intangible Assets and other assignable Assets; and
WHEREAS, Assignor desires to assign all right, title and interest in
and to the Intangible Assets and other assignable Assets to Assignee.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby agrees with Assignee as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee all
right, title and interest of Assignor in, to and under all of the Assets (other
than the Tangible Assets and the Contracts), including the Intangible Assets.
2. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of Assignor and Assignee and their respective heirs, executors,
administrators, successors and assigns.
3. No Modification. This Assignment is made pursuant to the terms of
the Purchase Agreement and does not create any additional obligations,
covenants, representations and warranties or alter or amend any of the
obligations, covenants, representations and warranties contained in the Purchase
Agreement. The provisions of the Purchase Agreement shall survive the execution
and delivery of this Assignment. In the event of any inconsistency between this
Assignment and the Purchase Agreement, the Purchase Agreement shall control.
4. Construction. The headings of the sections and subsections of this
Assignment are inserted as a matter of convenience and for reference purposes
only and in no respect define, limit or describe the scope of this Assignment or
of the intent of any section or subsection.
5. Choice of Law. This Assignment shall be governed by and construed in
accordance with the domestic laws of the state of California without giving
effect to any choice or conflict of law provision or rule (whether of the state
of California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the state of California.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed
as of the date first set forth above.
ASSIGNOR:
Smoky Systems, LLC, a Nevada limited
liability company
By: ___________________________________
EXHIBIT C
ASSIGNMENT AGREEMENT FOR THE CONTRACTS
[See attached]
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is entered
into as of the 19th day of June 2009, between Smoky Systems, LLC, a Nevada
limited liability company ("Assignor"), and Smoky Market Foods, Inc., a Nevada
corporation ("Assignee"). All capitalized terms not otherwise specifically
defined herein shall have the meanings set forth in that certain License
Termination and Asset Transfer Agreement dated as of June 30, 2009 to which
Assignor and Assignee are parties (the "Purchase Agreement").
WHEREAS, pursuant to the Purchase Agreement, Assignor has agreed to
assign to Assignee and Assignee has agreed to accept assignment of the
Contracts, including without limitation those identified on Exhibit A attached
hereto and incorporated by this reference; and
WHEREAS, Assignor desires to assign all of its right, title and
interest in and to the Contracts to Assignee, and Assignee desires to assume the
obligations of Assignor under the Contracts as set forth below.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee all of
its right, title and interest in, to and under the Contracts.
2. Acceptance of Assignment. Assignee accepts the assignment of the
Contracts, and agrees to assume and perform, to the extent set forth in the
Purchase Agreement, all liabilities and obligations of Assignor under the
Contracts arising on or after the Closing other than as a result of breach or
non-performance of the Assignor.
3. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of Assignor and Assignee and their respective heirs, executors,
administrators, successors and assigns.
4. No Modification. This Assignment is made pursuant to the terms of
the Purchase Agreement and does not create any additional obligations,
covenants, representations and warranties or alter or amend any of the
obligations, covenants, representations and warranties contained in the Purchase
Agreement. The provisions of the Purchase Agreement shall survive the execution
and delivery of this Assignment. In the event of any inconsistency between this
Assignment and the Purchase Agreement, the Purchase Agreement shall control.
5. Construction. The headings of the sections and subsections of this
Assignment are inserted as a matter of convenience and for reference purposes
only and in no respect define, limit or describe the scope of this Assignment or
of the intent of any section or subsection.
6. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. A facsimile copy of this
Assignment or any counterpart hereto shall be valid as an original.
7. Choice of Law. This Assignment shall be governed by and construed in
accordance with the domestic laws of the state of California without giving
effect to any choice or conflict of law provision or rule (whether of the state
of California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the state of California.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption Agreement as of the date first set forth above.
"ASSIGNOR"
Smoky Systems, LLC,
a Nevada limited liability company
By: ________________________________
"ASSIGNEE"
Smoky Market Foods, Inc.
a Nevada corporation
By: ___________________________
Its: __________________________
EXHIBIT A
Contracts
