Exhibit 6.36
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of this
2nd day of January, 1997, by and among Food Extrusion Montana, Inc., a Montana
corporation ("Purchaser"), Food Extrusion, Inc., a Nevada corporation ("FoodEx")
and Centennial Foods, Inc., an Idaho corporation ("Seller"). Purchaser is a
wholly-owned subsidiary of FoodEx.
RECITALS
A. Seller owns and operates a business that processes,
manufactures, sells and markets stabilized rice bran and rice bran oil in
Dillon, Montana (the "Business").
B. The parties have determined that it is in their mutual
interest to effect a transaction whereby certain assets of Seller shall be
transferred to Purchaser in exchange for (i) Purchaser's assumption of certain
obligations and liabilities of Seller with respect to the Business and (ii) the
issuance of three hundred ten thousand (310,000) shares of Common Stock of
FoodEx, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises
exchanged, it is agreed as follows:
ARTICLE I
SALE AND TRANSFER OF ASSETS
1.01 Federal Income Tax Consequences. The parties intend that,
for federal income tax purposes, the purchase of assets hereunder shall
constitute a taxable transaction pursuant to the Internal Revenue Code of 1986,
as amended (the "Internal Revenue Code").
1. 02 Subject to the terms and conditions of this Agreement,
Seller agrees to transfer, convey, assign and deliver to Purchaser on the
Closing Date (as defined in Section 9.01 hereof), and Purchaser agrees to
acquire the assets, tangible or intangible, properties and business of the
Business listed on Exhibit A attached hereto (the "Purchased Assets"), except as
specified in Section 1.03 below, as of the Effective Date (as defined in Section
9.02 hereof).
1.03 Excluded Assets. Notwithstanding anything to the contrary in
Section 1.01, Seller shall retain, and Purchaser shall not acquire, any assets
listed on Exhibit B attached hereto (the "Excluded Assets").
ARTICLE II
PURCHASE PRICE AND PAYMENT
2.01 Purchase Price. In full consideration for the purchase of
the Purchased Assets, Purchaser shall deliver to Seller on the Closing Date the
following:
(a) Shares of FoodEx. On the Closing Date, three hundred
ten thousand (310,000) shares of common stock, par value $.001 per share (the
"Shares") of FoodEx. The Shares shall be subject to the terms of a Shareholders
Agreement in substantially the form attached as Exhibit C hereto.
(b) Assumption of Obligations. On the Closing Date, an
undertaking in form and substance reasonably satisfactory to Seller and its
counsel whereby, as of the Effective Date, Purchaser shall assume and agrees to
pay, perform and discharge the liabilities and obligations listed on Exhibit D
attached hereto (the "Assumed Liabilities"). Copies of all forbearance
agreements with creditors relating to the Assumed Liabilities are attached
hereto as part of Exhibit D. Purchaser's obligation to pay, perform and
discharge the Assumed Liabilities shall be secured by the Purchased Assets
pursuant to the terms of a Security Agreement in substantially the form attached
hereto as Exhibit E (the "Security Agreement").
(c) Transfer and Assumption of 401(K) Plan. On the Closing
Date, Purchaser shall assume all obligations under the Centennial Foods, Inc.
401(K) Profit Sharing Plan and Trust arising on or after the Closing Date.
2.02 Liabilities and Obligations Not Assumed. Notwithstanding
anything else in this Agreement to the contrary, Purchaser shall not assume or
be obligated to pay, discharge or indemnify any party or become liable for any
liabilities, obligations or commitments of any nature of Seller, or any other
individual or entity, presently fixed and determined, contingent or otherwise,
other than those to be expressly assumed by Purchaser under Section 2.01(b)
hereof. All liabilities and obligations of Seller not expressly assumed shall
remain liabilities of Seller, which shall be solely liable to perform and
discharge such liabilities and obligations as are set forth on Exhibit F
attached hereto (the "Excluded Liabilities").
2.03 Sales, Use and Other Transfer Taxes. Seller represents and
warrants to Purchaser that there are no sales, use, transfer or similar taxes
payable in connection with the sale, assignment and transfer of the Purchased
Assets and the Assumed Liabilities. Seller hereby agrees that if any such sales,
use, transfer or similar tax is imposed in connection with the sale, assignment
and transfer of the Purchased Assets and the Assumed Liabilities Seller shall
pay, hold harmless and indemnify Purchaser with respect to any such taxes.
2.04 Title Insurance; Recording Fees. Seller shall pay all costs
of title insurance, recording and other fees incurred in connection with the
transfer of real property from Seller to Purchaser pursuant to the terms of this
Agreement.
2.05 Allocation of Purchase Price. The purchase price for the
Purchased Assets shall be allocated for all federal and state tax purposes
(including, but not limited to, income, excise, sales, use, personal property,
real property and transfer taxes) among the Purchased Assets as set forth below:
Assets
Inventory $ 0
Equipment $ 2,034,668
Real Property $ 330,332
Total: $ 2,365,000
Each of the parties hereto agrees to report this transaction for
state and federal tax purposes in accordance with this allocation of the
Purchase Price and not to file any tax return or report or otherwise take a
position with federal or state tax authorities which is inconsistent with such
allocation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Subject to and except for the information which is set forth in a
list of exceptions, identified by the Section of this Article to which they
pertain, contained in a schedule to be delivered to Purchaser five (5) days
prior to the Closing Date and attached hereto as Exhibit G (the "Disclosure
Schedule"), Seller represents and warrants to Purchaser and FoodEx that:
3.01 Due Incorporation. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Idaho.
3.02 Corporate Authority. Seller has all requisite corporate
power and authority to own, lease, operate and maintain its properties and to
carry on its business as it has been and is being conducted and possesses all
licenses, permits, authorizations, franchises, rights and privileges necessary
to the conduct of such business. Seller is duly qualified to do business and in
good standing in
each state or jurisdiction wherein failure to be so qualified would have a
material adverse affect on its business, properties or financial condition.
3.03 Authorization. Seller has full corporate power and authority
to enter into this Agreement, and the execution, delivery and performance of
this Agreement have been duly authorized by all requisite corporate action. This
Agreement has been duly executed and delivered by Seller and constitutes the
valid and binding obligation of Seller, enforceable in accordance with its
terms, except as enforcement may be limited by applicable bankruptcy laws and
similar laws affecting creditors' rights generally.
3.04 Effect of Agreement. The execution, delivery and performance
by Seller of this Agreement, and the consummation of the transactions herein
contemplated, will not result in a breach of the terms of, or constitute a
default under or violation of, any law or regulation of any governmental
authority, nor will it result in a breach of the terms of, or constitute a
default under or violation of, any provision of the Articles of Incorporation or
Bylaws of Seller, or any agreement or instrument to which Seller is a party or
by which it is bound or to which it is subject. No consent of any person not a
party to this Agreement and no consent of any governmental authority is required
to be obtained on the part of Seller to permit the consummation of the
transactions contemplated by this Agreement.
3.05 Purchased Assets. Exhibit A as attached hereto, and as
amended as of the Closing Date, sets forth, and will set forth, a true and
complete list describing and specifying the location of all of the Purchased
Assets owned by or used by Seller in connection with the Business, which
constitutes all the assets now used in the conduct of the Business, except for
the Excluded Assets. Unless otherwise noted on Exhibit A, all Purchased Assets
are located at Seller's address at 0000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxx.
3.06 Title to Assets. Seller has good and marketable title to all
the Purchased Assets, whether real, personal, tangible or intangible, and, on
the Closing Date, all the Purchased Assets will be free and clear of
restrictions on or conditions to transfer or assignment, and free and clear of
mortgages, liens, pledges, encumbrances, claims, conditions or restrictions,
except to the extent related to the Assumed Liabilities. All real property and
tangible personal property included in the Purchased Assets and are necessary to
the operation of the Business are in good operating condition and repair. To the
best of Seller's knowledge, none of such properties, nor the operation or
maintenance thereof, violates any restrictive covenant or any provision of law.
Except for the Excluded Assets, the Purchased Assets constitute all the property
now used in the Business and necessary for the conduct of the Business in the
manner and to the extent presently conducted and operated.
3.07 Absence of Undisclosed Liabilities. Exhibit D to this
Agreement contains a complete and accurate schedule of all Assumed Liabilities.
Seller has no liability, debt or obligation of any nature, either accrued,
absolute, contingent or otherwise, and whether due or to become due, that is not
set forth on Exhibit D, other than the Excluded Liabilities listed on Exhibit F.
3.08 Financial Statements. Seller has delivered to FoodEx its
unaudited financial statements (balance sheet, profit and loss statement and
statement of changes in financial position) for the fiscal years ended December
31, 1993, 1994 and 1995 and for the eleven-month period ended November 30, 1996
(the "Financial Statements"). The Financial Statements are complete and correct
in all material respects and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
period indicated and with each other, except for the omission of footnotes. The
Financial Statements accurately set out and describe the financial condition and
operating results of Seller as of the dates, and for the periods, indicated as
set forth in the Financial Statements, the Company has no liabilities,
contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to November 30, 1996, and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not
required under generally accepted accounting principles to be reflected in the
Financial Statements, which individually or in the aggregate, are not material
to the financial condition or operating results of Seller as of the dates, and
for the periods, indicated therein, subject to normal year-end audit
adjustments.
3.09 Inventory. All items of inventory and related supplies
(including raw materials, work-in-process and finished goods) included in the
Purchased Assets are and will be, as the case may be, saleable or useable in the
ordinary course of business.
3.10 Contracts. Exhibit H, as attached hereto, contains and will
contain as of the Closing Date a full and complete list of each partially or
totally executory material contract or agreement to which Seller is a party, or
by which it is bound in any respect, and which Purchaser is acquiring pursuant
to this Agreement including, without limitation, any and all: (i) contracts or
agreements for the purchase, sale, lease or other disposition of equipment,
goods, materials, supplies, or capital assets, or for the performance of
services; (ii) contracts or agreements for the joint performance of work or
services, and all other joint venture or teaming agreements; (iii) management or
employment contracts, consulting contracts, or termination and severance
agreements; (iv) notes, mortgages, deeds of trust, loan agreements, security
agreements, guaranties, debentures, indentures, credit agreements and other
evidences of indebtedness; (v) employee non-disclosure agreements, proprietary
invention agreements or other contracts or agreements relating to the
confidentiality of any intellectual property or Seller's rights with respect to
any such property developed by any of its employees, contractors, servants or
agents; (vi) contracts or agreements with agents, brokers, consignees, sales
representatives or distributors; (vii) contracts or agreements with any
director, officer, employee, consultant or shareholder; and (viii) powers of
attorney or similar authorizations granted to third parties.
3.11 Consents. Seller has obtained, or will obtain by the Closing
Date, the written consents and approvals of each person, organization or
governmental authority whose consent or approval shall be required in order to
permit Seller to transfer the Purchased Assets to Purchaser hereunder.
3.12 Compliance with Laws and Regulations. Seller is not in
violation, nor received notice of any violation, of any federal, state or local
statute, law, rule or regulation with respect to or affecting the conduct of the
Business or the ownership or operation of the Purchased Assets. Seller is not
presently subject to any order, injunction or decree issued by any governmental
body, agency, authority or court relating to any of its property, business or
operation.
3.13 Litigation and Claims. There are no claims, actions, suits,
investigations or proceedings, existing or pending or, to the knowledge of
Seller, threatened, against or affecting Seller or any of its properties or
business, at law or in equity, or before or by any governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign. There
is no governmental investigation of Seller or its affairs, business or assets.
Seller is not in default with respect to any order, writ, injunction, or decree
of any federal, state, local, or foreign court, department, agency, or
instrumentality. Seller is not presently engaged in any legal action to recover
moneys due to or from it or damages sustained by or caused by it. No claims have
been made by or against Seller, whether accepted as valid or denied as invalid,
which may give rise to litigation. Seller has no knowledge of any dispute or any
facts which would give rise to any material claim by or against Seller or
affecting Seller or its business, properties, or financial or other condition.
3.14 Toxic Wastes; Employee Safety; etc. The Business and the
existing and prior uses and activities thereon comply and have at all times
complied with all Environmental Requirements (as defined in Section 3.15
herein). Neither Seller, nor any prior owner, operator or occupant of the
Business has received notice or other communication concerning any alleged
violation of Environmental Requirements, whether or not corrected to the
satisfaction of appropriate authorities, nor notice or other communications
concerning liability for Environmental Damages (as defined in Section 3.15
herein) in connection with the Business. There exists no writ, injunction,
decree, order or judgment outstanding, nor any lawsuit, claim, proceeding,
citation, directive, summons or investigation, pending or threatened, relating
to the ownership, use, maintenance or operation of the Business by Seller, or
from alleged violations of Environmental Requirements by Seller, or from the
suggested presence of hazardous material placed thereon by Seller, nor does
there exist any basis for such lawsuit, claim, proceeding, citation, directive,
summons or investigation being instituted or filed.
3.15 Hazardous Materials and Pollutants. There are no
asbestos-containing materials that are part of the Business, nor is there any
electrical transformer, fluorescent light fixture with ballasts, or other
equipment containing polychlorinated biephenyls ("PCBs") at the Business. Seller
is in compliance with any and all Environmental Requirements, as defined below,
and Seller has not released, spilled, disposed or discharged (including ground
water contamination) any Hazardous Materials in violation of any Environmental
Requirements nor is it aware of any such releases. Seller has complied with and
continues to comply with all applicable Environmental Requirements concerning
control or emissions to air, water, groundwater and soil, including pretreatment
of industrial effluent discharged to a publicly owned treatment works, and
discharge of stormwater. With respect to any release of hazardous substances to
the environment, including petroleum products, if any, Seller has provided
prompt and full notification, if required, to all appropriate federal, state and
local agencies and has provided copies of such notifications, if any, to
Purchaser. To the extent required, if at all, Seller has complied with all
Environmental Requirements to inventory hazardous substances or materials in its
possession; to report recurring releases of hazardous substances, hazardous
materials or toxic air pollutants; and to prepare, by itself and in conjunction
with all appropriate environmental and emergency response agencies, plans for
responses to spills, leaks and other releases to the environment. No hazardous
wastes or solid wastes generated by Seller have been disposed of at any site
which is now, or is likely to become, under investigation for releases at or
from the site of hazardous substances, pollutants or contaminants. To the extent
required, Seller has diligently kept and maintained, and obeyed all applicable
laws concerning, all records, invoices and manifests concerning disposal of all
of its hazardous and solid waste. No Hazardous Materials are presently located
on the surface or subsurface of, or in the ground water under, the real property
owned or leased by Seller in connection with the Business, except those
Hazardous Materials which are stored in compliance with all Environmental
Requirements.
As used in this Agreement, the term "Hazardous Materials" is defined as
any substance:
(a) the presence of which requires investigation or remediation
under any federal, state or local statute, regulation, ordinance, order, action
or policy; or
(b) which is defined or listed as a "hazardous waste," "hazardous
substance," pollutant or contaminant under any federal, state or local statute,
regulation, rule or ordinance or amendments thereto including, without
limitation, the Comprehensive Environmental Response Compensation and Liability
Act (42 U.S.C. ss. 9601, et seq.) and/or the Resource Conservation and Recovery
Act (42 U.S.C. ss. 6901, et seq.), the United States Department of
Transportation Hazardous Materials Table(49 CFR 172.101), the Environmental
Protection Agency List of Hazardous Substances and Reportable Quantities (40 CFR
Part 302.4) and the amendments thereto or the California Health & Safety Code;
or
(c) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous and is regulated by
any governmental authority, agency, department, commission, board, agency or
instrumentality of the United States, the State of California or any political
subdivision thereof; or
(d) the presence of which causes or threatens to cause a nuisance
upon any properties or poses or threatens to pose a hazard to the health or
safety of persons; or
(e) without limitation which is made from or contains (i)
gasoline, diesel fuel or other petroleum hydrocarbons, (ii) asbestos, or (iii)
polychlorinated biphenyls ("PCBs") at concentrations at or above 50 parts per
million.
As used in this Agreement, the term "Environmental Requirements" means
all applicable statutes, regulations, rules, ordinances, codes, licenses,
permits, orders, approvals, plans, authorizations, concessions, franchises, and
similar items, of all governmental agencies, departments, commissions, boards,
bureaus, or instrumentalities of the United States, states and political
subdivisions thereof and all applicable judicial, administrative, and regulatory
decrees, judgments and orders relating to the protection of human health or the
environment, including without limitation: (i) all requirements including but
not limited to those pertaining to reporting, licensing, permitting,
investigation, and remediation of emissions, discharges, releases, or threatened
releases of Hazardous Materials, chemical substances, pollutants, contaminants,
or hazardous or toxic substances, materials or wastes whether solid, liquid, or
gaseous in nature, into the air, surface water, groundwater, or land relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of chemical substances, pollutants, contaminants, or
hazardous or toxic substances, materials, or wastes, whether solid, liquid or
gaseous in nature; and (ii) all requirements pertaining to the protection of the
health and safety of employees of the Business.
As used in this Agreement, the term "Environmental Damages" means all
claims, judgments, damages, losses, penalties, fines, liabilities, encumbrances,
liens, costs, and expenses of investigation and defense of any claim, including
without limitation, attorneys' fees and disbursements and consultant's fees
incurred at any time as a result of the existence of Hazardous Material upon,
about, beneath the Business or the existence of a violation of Environmental
Requirements pertaining to the Business.
3.16 Intangible Property. Exhibit L correctly describes all of
the intangible property related to the Business and which is presently owned,
licensed, possessed, used or held by Seller in the conduct of the Business
including, but not limited to, patents, copyrights, inventions, processes,
research and development results, know-how, trade secrets and goodwill (the
"Seller Intangible Property"). Seller represents and warrants that: (i) Seller
owns sufficient interest in and to the Sellers Intangible Property to enable it
to conduct the Business as presently conducted; (ii) none of the Sellers
Intangible Property is being infringed by others; (iii) all trade secrets
related to the Business have been adequately safeguarded, have not been
disclosed to any third parties who are not bound to maintain the confidentiality
of such trade secrets; and (iv) the conduct of the Business does not infringe
any patent, copyright, trademark, trade secret, trade name or commercial name,
registered or unregistered, or other intellectual property rights of third
parties, and no claim is pending or has been made to such effect.
3.17 Real Property. Neither the operations of the Business on any
of property used in the Business, nor any improvements thereon, violate any
applicable building code, zoning requirement, or pollution control ordinance or
any statute applicable to such real property. Seller has not received any notice
contesting Seller's ownership of any of such real property interests.
3.18 Taxes. Seller has duly filed with the appropriate United
States, state, local and foreign governmental agencies, all tax returns and
reports required to be filed and has paid or accrued in full on the Effective
Date all taxes, interest, penalties, assessments or deficiencies, if any, due
to, or claimed to be due by, any taxing authority (other than taxes due by
reason of the transactions contemplated hereunder). Seller has never filed with
the Internal Revenue Service, nor has any person filed on its behalf, any
election pursuant to Section 341(f) of the Internal Revenue Service Code of
1954, as amended.
3.19 Fraudulent Conveyances. The sale and purchase of assets
hereunder does not constitute a fraudulent conveyance under the Uniform
Fraudulent Transfer Act in Idaho, Montana or under the laws of any other
jurisdiction where the Purchased Assets may be located.
3.20 Absence of Changes. Since November 30, 1996 there has not
been any change in the financial condition of Seller's Business, except for
changes in the ordinary course of business which have not in the aggregate been
materially adverse.
3.21 Investment Representations. This Agreement is made with the
Seller upon the understanding as a specific representation to the Purchaser and
FoodEx by the Seller that:
(a) The Shares purchased hereunder will be acquired for
the Seller's own account, not as a nominee or agent, and not with a view to the
distribution of any part thereof, and the Seller has no present intention of
selling, granting participation in, or otherwise distributing the same. The
Seller has not been organized for the purpose of investing in securities of the
Company, although such investment is consistent with its purposes.
(b) The Seller is aware of and has investigated the
Company's business, management and financial condition, has had the opportunity
to inspect the Company's facilities and has had access to such other information
about the Company as the Seller has deemed necessary or desirable to reach an
informed and knowledgeable decision to acquire the Shares.
(c) The Seller understands that the Shares will not be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
by reason of, among other things, reliance upon certain exemptions therefrom.
3.22 Material Misstatements and Omissions. To the best of
Seller's knowledge, the Purchased Assets include all of the assets, rights and
properties that Purchaser will need to receive all of the revenues and profits
from the Business and to operate the Business as it has been heretofore operated
and conducted by Seller. No representation or warranty by Seller in any
certificate or Schedule or Exhibit to be furnished by it pursuant hereto, or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of any material fact or omits or will omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3.23 "Bulk Sales" Notice. To the extent applicable, the Seller
has taken all action necessary and appropriate to comply with the "Bulk Sales"
laws of Montana and other states in which any of the Purchased Assets are
located.
3.24 Representations and Warranties True as of Closing Date. All
of the representations and warranties of Seller contained herein will be true in
all material respects on and as of the Closing Date.
3.25 Employee Benefits.
(a) The Seller is not a party to or bound by any
employment contract, collective bargaining agreement, or pension, bonus,
profit-sharing, stock option, or other agreement or arrangement providing for
employee remuneration or benefits.
(b) The Seller does not have any written or oral contract
or commitments or liabilities to any labor organization or association of
employees, and to the Seller's knowledge, after reasonable investigation, no
negotiation with any such organization or association and no attempt, plan or
threat to organize the employees of the Seller is pending, threatened or
contemplated. There is no pending, or, to the Seller's knowledge, threatened
labor dispute, strike, or work stoppage affecting the Seller's business.
(c) The Seller has complied in all material respects with
all applicable laws for each of its respective employee benefit plans, including
the provisions of the Employee Retirement Income Security Act ("ERISA") if and
to the extent applicable. No reportable event (as defined in ERISA) has occurred
and is continuing and there has been no "prohibited transaction" as defined in
section 406 of ERISA. The Seller has not incurred any accumulated funding
deficiency within the meaning of ERISA and the current value of the assets of
any plans meets or exceeds the accrued benefits under each plan. To the Seller's
knowledge, there are no threatened or pending claims by or on behalf of any such
benefit plan, by or on behalf of any employee covered under any such plan, or
otherwise involving any such benefit plan, that allege a breach of fiduciary
duties or violation of other applicable state or federal law, nor is there, to
the Seller's knowledge, any basis for such a claim.
(d) The Seller has not entered into any severance or
similar arrangement with respect to any present or former employee that will
result in any obligation, absolute or contingent, of Purchaser or the Seller to
make any payment to any present or former employee following termination of
employment.
ARTICLE IV
REPRESENTATION AND WARRANTIES OF PURCHASER AND FOODEX
Purchaser and FoodEx represent and warrant to Seller as follows:
4.01 Due Incorporation. FoodEx is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Nevada. Purchaser is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Montana.
4.02 Corporate Authority. Each of Purchaser and FoodEx has all
requisite corporate power and authority to own or lease its properties and to
carry on its business as now being conducted.
4.03 Authorization. Each of Purchaser and FoodEx has the
corporate power and authority to enter into this Agreement, and the execution,
delivery and performance of this Agreement have been duly authorized by all
requisite corporate action. This Agreement has been duly executed and delivered
by Purchaser and FoodEx, respectively, and constitutes the valid and binding
obligations of Purchaser and FoodEx, enforceable in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy laws and similar
laws affecting creditors' rights generally.
4.04 Effect of Agreement. The execution, delivery and performance
by Purchaser and FoodEx, respectively, of this Agreement, and the consummation
of the transactions herein contemplated, will not result in a breach of the
terms of, or constitute a default under or violation of, any law or regulation
of any governmental authority, nor will it result in a breach of the terms of,
or constitute a default under or violation of, any provision of the Articles of
Incorporation or Bylaws of Purchaser or FoodEx, or any agreement or instrument
to which Purchaser or FoodEx is a party or by which either is bound or to which
either is subject. No consent of any person not a party to this Agreement and no
consent of any governmental authority is required to be obtained on the part of
Purchaser or FoodEx to permit the consummation of the transactions contemplated
by this Agreement.
4.05 The Shares. The Shares, when issued in compliance with the
provisions of this Agreement, will be validly issued, fully paid and
unassessable and will be issued in compliance with all applicable federal and
state securities laws.
ARTICLE V
COVENANTS OF SELLER
Seller hereby covenants:
5.01 Conduct of Business. From and after the execution and
delivery of this Agreement and until the Closing Date or the termination of this
Agreement, whichever shall first occur: (i) Seller will carry on its Business in
substantially the same manner as it has been conducted; (ii) Seller shall not
engage in any activities or transactions which shall be outside the ordinary
course of its business operations without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld; (iii) Seller will
use its best efforts to preserve the existing licenses, franchises, rights and
privileges pertinent to the Business; and (iv) Seller will use its best efforts
to preserve intact Seller's business organization and to preserve its goodwill
and relationships with its suppliers, customers, employees and others with whom
it deals.
5.02 Name Change. Immediately after the Closing Date, Seller
shall amend its Articles of Incorporation and take such other actions as are
necessary to change its name from Centennial Foods, Inc. to CF Corporation.
5.03 Third Party Consents. Seller shall use all reasonable
efforts to assist Purchaser in obtaining the written consents and approvals of
each person, organization or governmental authority whose consent or approval
shall be required in order to permit Seller to transfer the Purchased Assets to
Purchaser hereunder.
5.04 Notice of Certain Adverse Changes, Defaults or Claims.
Seller shall give prompt notice to Purchaser of any material adverse change to
Seller's properties or business or any notice of default received by Seller
subsequent to the date of this Agreement and prior to the Closing Date, under
any instrument or agreement to which Seller is a party or by which any of
Seller's properties are bound, or of the assertion of any claim which, if
upheld, would render inaccurate any representation of Seller herein.
5.05 Assistance in Transferring Assets and Business. Seller shall
use its best efforts to assist Purchaser in planning for and accomplishing the
orderly transition and transfer of the Purchased Assets to Purchaser as provided
herein and shall take all steps as may be reasonably requested by Purchaser in
furtherance thereof. Additionally, between the Effective Date and the Closing
Date Seller will permit employees or other representatives of Purchaser to
supervise and direct the employees, business and operations of the Business.
5.06 Implementation of Representations and Warranties. Seller
shall use its best efforts to render accurate as of the Closing Date its
representations and warranties contained in this Agreement, and shall refrain
from taking any action which would render inaccurate as of the Closing Date any
of such representations or warranties.
5.07 Communications. Between the date hereof and the Closing
Date, Seller shall not furnish any communication to the public, including its
customers, with respect to the transactions contemplated by this Agreement
without the prior written approval of FoodEx as to the content thereof, which
approval shall not be unreasonably withheld by FoodEx.
ARTICLE VI
COVENANTS OF PURCHASER
Purchaser hereby covenants:
6.01 Third Party Consents. Purchaser shall use all reasonable
efforts to assist Seller in obtaining the written consents and approvals of each
person, organization or governmental authority whose consent or approval shall
be required in order to permit Seller to transfer the Purchased Assets to
Purchaser hereunder.
6.02 Assistance in Transferring Assets and Business. Purchaser
shall use its best efforts to assist Seller in planning for and accomplishing
the orderly transition and transfer of the Purchased Assets to Purchaser as
provided herein and shall take all steps as may be reasonably requested by
Seller in furtherance thereof.
6.03 Implementation of Representations and Warranties. Purchaser
shall use reasonable efforts to render accurate as of the Closing Date its
representations and warranties contained in this Agreement, and shall refrain
from taking any action which would render inaccurate as of the Closing Date any
of such representations or warranties.
6.04 Communications. Between the date hereof and the Closing
Date, neither Purchaser nor FoodEx shall not furnish any communication to the
public, including customers of FoodEx, with respect to the transactions
contemplated by this Agreement without the prior written approval of Seller as
to the content thereof, which approval shall not be unreasonably withheld by
Seller.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are, at the option
of Seller, subject to the satisfaction at and prior to the Closing Date of the
following conditions:
7.01 Accuracy of Representations and Warranties. All of the
representations and warranties made by Purchaser and FoodEx in this Agreement
shall be true in all material respects as of the Closing Date with the same
force and effect as though such representations and warranties had been made as
of the Closing Date and each of Purchaser and FoodEx shall have delivered to
Seller a certificate to such effect dated the Closing Date and signed by the
President of each corporation.
7.02 Fulfillment of Covenants. All of the terms, covenants and
conditions of this Agreement to be complied with and performed by Purchaser and
FoodEx at or before the Closing Date shall have been duly complied with and
performed by Purchaser and FoodEx.
7.03 Approval of Sale. This Asset Purchase Agreement and the sale
of the Purchased Assets to Purchaser and FoodEx hereunder shall have been
approved by the Board of Directors and shareholders of Seller in accordance with
the applicable provisions of its Articles of Incorporation and Bylaws and the
Idaho Corporations Code and any agreement to which Seller is a party. All other
authorizations, consents and approvals of all federal, state and local
governmental agencies and authorities required to be obtained in order to permit
the consummation of the transactions contemplated by this Agreement shall have
been obtained.
7.04 No Litigation. There shall be no litigation pending which
has been brought for the purpose of enjoining the purchase and sale of the
Purchased Assets or any part thereof or any other transaction contemplated by
this Agreement or which would have the effect, if successful, of imposing a
material liability upon Seller or any of its officers or directors, because of
such purchase and sale.
7.05 Security Agreement. Purchaser shall have executed the
Security Agreement.
7.06 Employment Agreement. Purchaser and Xxx Xxxxx shall have
entered into an Employment Agreement in substantially the form attached hereto
as Exhibit I (the "Employment Agreement").
7.07 Shareholders Agreement. Foodex and Seller shall have entered
into the Shareholders Agreement.
7.08 Securities Act Exemption. The offering, sale and issuance of
the Shares to be issued in conformity with the terms of the Agreement,
constitute transactions exempt from the registration requirements of Section 5
of the Securities Act of 1933, as amended (the "Securities Act") pursuant to
Section 3(a)(10) of the Securities Act. Notwithstanding the foregoing, in the
event that the offer, sale and issuance of the Shares is not exempt from
registration pursuant to Section 3(a)(10) of the Securities Act, the Seller and
Foodex shall enter into a registration rights agreement providing for one demand
registration right on terms and conditions mutually acceptable to both parties
and counsel.
7.09 Legal Opinion. Seller shall have received from legal counsel
for FoodEx a legal opinion in form and substance satisfactory to Seller and its
counsel regarding certain matters set forth in Article IV.
7.10 Secretary's Certificate. Each of Purchaser and FoodEx shall
have delivered to Seller a Secretary's Certificate certifying as to each such
corporation's Articles of Incorporation, Bylaws, officers' incumbency and
certain board resolutions approving this Agreement and the transactions
contemplated hereby.
7.11 Approval of Documentation. The form and substance of all
certificates, instruments, opinions and other documents delivered to Seller
under this Agreement shall be satisfactory in all reasonable respects to Seller
and its counsel.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF PURCHASER AND FOODEX
The obligations of Purchaser and FoodEx under this Agreement are,
at the option of Purchaser and FoodEx, subject to the satisfaction at and prior
to the Closing Date of the following conditions:
8.01 Accuracy of Representations and Warranties. All of the
representations and warranties made by Seller in this Agreement shall be true in
all material respects as of the Closing Date with the same force and effect as
though such representations and warranties had been made as of the Closing Date
and Seller shall have delivered to Purchaser and FoodEx a certificate to such
effect dated the Closing Date and signed by the President of Seller.
8.02 Fulfillment of Covenants. All of the terms, covenants and
conditions of this Agreement to be complied with and performed by Seller at or
before the Closing Date shall have been duly complied with and performed.
8.03 Approval of Sale. The Board of Directors of Purchaser and
FoodEx shall have approved this Asset Purchase Agreement and the sale of the
Purchased Assets hereunder in accordance with the applicable provisions of each
corporation's Articles of Incorporation and Bylaws, the Montana Corporations
Code and the Nevada Corporations Code, respectively, and any agreement to which
Purchaser or FoodEx is a party. All other authorizations, consents and approvals
of all federal, state and local governmental agencies and authorities required
to be obtained in order to permit the consummation of the transactions
contemplated by this Agreement shall have been obtained.
8.04 No Litigation. There shall be no litigation pending which
has been brought for the purpose of enjoining the purchase and sale of the
Purchased Assets or any part thereof or any other transaction contemplated by
this Agreement or which would have the effect, if successful, of imposing a
material liability upon Purchaser or FoodEx or any of their respective officers
or directors, because of such purchase and sale.
8.05 No Adverse Changes. The Business, properties or operations
of Seller shall not have been adversely affected in any material way as the
result of any fire, accident or other casualties or any labor disturbance or Act
of God (whether or not covered by insurance) or by any litigation.
8.06 Consents Obtained. Seller shall have delivered to Purchaser
and FoodEx the written consent, approval or notification of each person or
organization whose consent, approval or notification shall be required in order
to permit Seller to consummate the transactions contemplated hereby or in order
to avoid any breach or termination of any agreement included in the Purchased
Assets.
8.07 Shareholders Agreement. Foodex and Seller shall have entered
into the Shareholders Agreement.
8.08 Employment Agreement. Purchaser and Xxx Xxxxx shall have
entered into the Employment Agreement.
8.09 Noncompetition Agreements. Each shareholder active in the
management of Seller shall have entered into a Noncompetition, Nondisclosure and
Nonsolicitation Agreement in substantially the form attached hereto as Exhibit J
(the "Noncompetition Agreement").
8.10 Proprietary Information and Employee Inventions Agreement.
Each employee of Seller shall have entered into a Proprietary Information and
Employee Inventions Agreement in substantially the form attached hereto as
Exhibit K (the "Proprietary Information Agreement").
8.11 Creditor Forbearance Agreements. Seller shall have delivered
to Purchaser an original signed Forbearance Agreement from each entity or
individual listed on Exhibit D attached hereto in form and substance
satisfactory to Foodex and Purchaser.
8.12 Title Insurance. Seller shall have delivered to Purchaser a
CLTA title insurance policy from First American Title Company insuring the real
property transferred by Seller to Purchaser, subject to such exceptions and
exclusions as shall be reasonably acceptable to Purchaser.
8.13 Legal Opinion. Purchaser and FoodEx shall have received from
legal counsel for Seller a legal opinion in form and substance satisfactory to
FoodEx and its counsel regarding certain matters set forth in Article III.
8.14 Secretary's Certificate. Seller shall have delivered to
FoodEx a Secretary's Certificate certifying as to such corporation's Articles of
Incorporation, Bylaws, officers' incumbency and certain board resolutions
approving this Agreement and the transactions contemplated hereby.
8.15 Approval of Documentation. The form and substance of all
certificates, instruments, opinions and other documents delivered to Purchaser
or FoodEx under this Agreement shall be satisfactory in all reasonable respects
to Purchaser, FoodEx and their counsel.
ARTICLE IX
CLOSING
9.01 Closing Date. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at 1:00p.m. on March 19,
1997, or at such other time and date as may be mutually agreed upon in writing
by the parties hereto (the time and date of closing as so determined being
herein called the "Closing Date"). The Closing shall be held at the offices of
Xxxxxx & Xxxxx LLP, 000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxxx or at
such other place as the parties may agree upon in writing.
9.02 Effective Date. Subject to the consummation of the Closing
on the Closing Date, the Effective Date of the Closing for all purposes shall be
January 1, 1997 (the "Effective Date").
9.03 Instruments of Conveyance and Transfer. On the Closing Date,
Seller shall deliver to Purchaser:
(a) Such bills of sale, deeds, endorsements, assignments
and other good and sufficient instruments of transfer, conveyance and
assignment, in form satisfactory to Seller's counsel, as shall be effective to
vest in Purchaser good title to the Purchased Assets to be transferred,
conveyed, assigned and delivered hereunder, free and clear of all liens and
encumbrances, except as provided in Section 2.01(b) hereof; and
(b) All of Seller's agreements, leases, contracts,
insurance policies and vendor, supplier and customer purchase orders assigned to
or assumed by Purchaser under this Agreement, with such assignments thereof and
consents to the assignment thereof as may be reasonably necessary to assure
Purchaser of the full benefits thereof.
9.04 Instruments of Payment and Assumption. On the Closing Date:
(a) Purchaser shall deliver a share certificate to Seller
in an amount of three hundred ten thousand (310,000) shares of common stock of
FoodEx; and
(b) Purchaser shall deliver to Seller a certificate of
assumption, in form satisfactory to counsel for Seller, evidencing Purchaser's
assumption of liabilities and obligations of Seller pursuant to Section 2.01(b)
hereof.
9.05 Other Documents. Each party shall deliver to the other on
the Closing Date such other documents, certificates, schedules, agreements and
instruments called for by this Agreement at such time.
9.06 Further Assurances of Seller. Seller shall from time to time
at the request of Purchaser, and without further consideration, execute and
deliver such instruments of transfer, conveyance and assignment in addition to
those issued pursuant to Section 9.03 hereof, and take such other actions, as
may be reasonably necessary to transfer, convey, assign to and vest in Purchaser
and to put Purchaser in possession of, the Purchased Assets to be transferred,
conveyed, assigned and delivered hereunder.
9.07 Further Assurances of Purchaser. Purchaser shall from time
to time at the request of Seller, and without further consideration, execute and
deliver such instruments of assumption in addition to those issued pursuant to
Section 9.04 hereof, and take such other actions, as may be reasonably necessary
to assume such obligations.
ARTICLE X
TRANSFER OF PURCHASED ASSETS TO PURCHASER AND
POST-CLOSING OPERATIONS
10.01 Conduct of Business, Generally. Upon completion of the
Closing, Purchaser shall be deemed to be the owner and operator of the Business
and the Purchased Assets from and after the Effective Date and shall be solely
responsible and liable therefor and with respect thereto. From and after the
Closing Date, Purchaser shall take possession of the Purchased Assets and shall
manage and conduct the Business. Purchaser and FoodEx hereby agree to use their
reasonable efforts to maintain the Business and the Purchased Assets in
substantially the same physical condition as that which existed on the Closing
Date, subject to normal wear and tear.
10.02 Agency. Nothing in this Agreement shall constitute either
party as the agent or representative of the other or authorize either party to
bind or incur any obligation on behalf of the other, except as expressly stated
herein or otherwise authorized in writing. The relationship of each party to the
other in performing the services described in this Article X shall be that of an
independent contractor.
ARTICLE XI
SURVIVAL OF REPRESENTATIONS, WARRANTIES
AND COVENANTS; INDEMNIFICATION
11.01 Survival. The representations, warranties and covenants of
the parties contained in this Agreement or in any certificate or instrument
delivered pursuant hereto shall survive the Closing Date.
11.02 Indemnification.
(a) Seller agrees to indemnify, defend and hold
Purchaser's and FoodEx's officers, directors, employees and attorneys, all
affiliates (as defined in Rule 144 promulgated under the Securities Act of 1933,
17 CFR ss.230.144(a)), and the officers, directors, employees and attorneys of
such affiliates and subsidiaries (all such persons and entities being
collectively referred to as the "Purchaser Group") harmless from and against any
and all losses, damages, costs and expenses, including attorneys' fees (any such
loss, damage, cost or expense herein called a "Loss"), which Purchaser may at
any time sustain or incur by reason of: (i) any inaccuracy or breach of any of
the representations, warranties or covenants of Seller contained herein or in
any certificate delivered pursuant thereto, or (ii) any claim or claims whether
or not presently known to Seller, which arise in connection with the ownership
or operation of the Business and the Purchased Assets, where the event which
gives rise to such claim occurred prior to the Effective Date, or (iii) any
claim or claims arising out of the failure of Seller to discharge any of its
obligations pursuant to Section 2.04 hereof or any liability or obligation
relating to the Purchased Assets and Business not assumed by Purchaser under
section 2.01(b) hereof.
(b) Purchaser and FoodEx agree to indemnify and hold
harmless Seller with respect to any Loss which it may at any time sustain or
incur (i) by reason of any inaccuracy in or breach of any of the
representations, warranties or covenants of Purchaser contained herein; (ii)
arising out of Purchaser's failure to discharge the obligations and liabilities
of Seller specifically assumed by Purchaser under section 2.01(b) hereof or
(iii) arising out of Purchaser's use of the Purchased Assets after the Closing
Date. If any action in respect of which indemnity may be sought hereunder by a
party hereto shall be brought against such party, the other party shall be
entitled to participate in the defense thereof at its own expense and to settle
any such action on such terms as it shall see fit so long as the party entitled
to indemnification hereunder shall be released from any liability by reason of
such settlement. In such event, the party required to provide indemnification
shall receive full cooperation and access to all relevant and nonprivileged
records.
(c) Seller acknowledges and agrees that Purchaser and
FoodEx shall have the right to set off any claims for indemnification hereunder
against any amounts owing under the Shareholders Agreement.
11.03 Remedies. The indemnification provisions of Section 11.02
hereof shall not be deemed exclusive and shall not prejudice any other rights or
remedies, at law or in equity, of any party under this Agreement with respect to
any matter relating to the terms, provisions, covenants or conditions of this
Agreement or any transaction contemplated hereby.
ARTICLE XII
TERMINATION AND ABANDONMENT
12.01 Termination by Purchaser. This Agreement may be terminated
and the purchase and sale of the Purchased Assets abandoned at any time prior to
the Closing Date by action of the Board of Directors of FoodEx upon written
notice, specifying the basis for such termination, if: (i) in the good faith
judgment of said Board of Directors, Seller shall have failed to comply in any
material respect with any of their respective covenants or agreements contained
in this Agreement or if any material representation or warranty of Seller
contained in this Agreement shall have been materially inaccurate, or if any
condition precedent to the obligations of Purchaser or FoodEx contained in this
Agreement which must be satisfied according to its terms prior to the Closing
shall not have been satisfied or is not capable of being satisfied; or (ii)
there shall have been any material adverse change in either the business or
financial condition of the Business after the date of this Agreement.
12.02 Termination by Seller. This Agreement may be terminated,
and the purchase and sale of the Purchased Assets abandoned, at any time prior
to the Closing Date by action of the Board of Directors of Seller upon written
notice, specifying the basis for such termination, if in the good faith judgment
of said Board of Directors, FoodEx or Purchaser shall have failed to comply in
any material respect with any of their respective covenants or agreements
contained in this Agreement, or if any material representation or warranty of
Purchaser or FoodEx contained in this Agreement shall have been materially
inaccurate, or if any condition precedent to Seller's obligations contained in
this Agreement which must be satisfied according to its terms prior to the
Closing shall not have been satisfied or is not capable of being satisfied.
12.03 Mutual Consent. This Agreement may be terminated, and the
purchase and sale of the Purchased Assets abandoned, at any time before the
Closing Date, by mutual consent of FoodEx and Seller expressed by action of
their respective Boards of Directors.
12.04 Effect of Termination. Upon any permitted termination
pursuant to the provision of this Article XII, both parties shall be relieved of
all further obligations under this Agreement.
ARTICLE XIII
PAYMENT OF EXPENSES
13.1 Expenses. The parties shall each pay their own legal and
accounting fees and other out-of-pocket expenses incurred incident to the
preparation and carrying out of this Agreement and the transactions herein
contemplated.
13.2 Brokers. Seller and FoodEx represent that they have dealt
with no broker or finder in connection with any of the transactions contemplated
by this Agreement and insofar as they know, no broker or other person besides is
entitled to any commission or finder's fee in connection with any such
transaction. Each party agrees to indemnify and hold the other party harmless
against any loss, liability, damage, cost or expense incurred by reason of any
brokerage commission or finder's fee found to be payable because of any act,
omission or statement of the indemnifying party.
ARTICLE XIV
GENERAL PROVISIONS
14.01 Notices. Any notice, request, instruction or other document
to be given hereunder by either party to the other shall be in writing and
effective when delivered personally or sent by first class mail, postage
prepaid, as follows:
TO: Food Extrusion, Inc.
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, XX 00000
Attention: President
With a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
TO: Centennial Foods, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: President
With a copy to:
Xxxxxx & Xxxxx, X.X.
1600 Washington Trust Financial Center
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
or to such other addresses or other persons as may be designated in writing by
either of the parties, by notice given as aforesaid.
14.02 Headings. The headings of the several sections of this
Agreement are inserted for the convenience of reference only and are not
intended to affect the meaning or interpretation of this Agreement.
14.03 Counterparts. This Agreement may be executed in one or more
counterparts, and when so executed each counterpart shall be deemed to be an
original, and said counterparts together shall constitute one and the same
instrument.
14.04 Binding Nature. This Agreement shall be binding upon and
inure to the benefit of the parties hereto. Neither party may assign or transfer
any rights or obligations under this Agreement, without the written consent of
the other party, which consent shall not be withheld unreasonably.
14.05 Waiver. FoodEx and Seller, may, by written notice to the
other: (i) waive any of the conditions to its obligations hereunder or extend
the time for the performance of any of the obligations or actions of the other;
(ii) waive any inaccuracies in the representations of the other contained in
this Agreement or in any documents delivered pursuant to this Agreement; (iii)
waive compliance with any of the covenants of the other contained in this
Agreement; or (iv) waive or modify performance of any of the obligations of the
other. No action taken pursuant to this Agreement, including without limitation
any investigation by or on behalf of either party, shall be deemed to constitute
a waiver by the party taking such action of compliance with any representation,
warranty, condition or agreement contained herein. Waiver of the breach of any
one or more provisions of this Agreement shall not be deemed or construed to be
a waiver of other breaches or subsequent breaches of the same provisions.
14.06 Entire Agreement. This Agreement and the Schedules and
Exhibits hereto constitute the entire agreement between the parties pertaining
to the subject matter contained herein and supersede all prior and
contemporaneous negotiations, agreements, representations, and understandings of
the parties. No supplement, modification, or amendment of this Agreement shall
be binding unless executed in writing by the party sought to be bound.
14.08 Applicable Law; Forum Selection. This Agreement shall be
governed by the laws of the State of California. Any controversy or dispute
arising out of this Agreement shall be brought in any state or federal court
located within Sacramento County of the State of California. Each party hereto
consents to the jurisdiction of any state or federal court located within
Sacramento County of the State of California and waives personal service of any
and all process upon it and consents that all such service of process be made by
certified mail directed to such party at the address set forth in Section 15.01
herein.
14.09 Severability. Should any provision of this Agreement be
determined to be invalid, it shall be severed from this Agreement and the
remaining provisions of the Agreement shall remain in full force and effect.
WITNESS the due execution of this Agreement by the parties hereto
as of the date first set forth above.
FOOD EXTRUSION, INC.
By:/s/X.X. XxXxxx
--------------------
Name: Xxxxxx X. XxXxxx
Title: Chief Executive Officer
FOOD EXTRUSION MONTANA, INC.
By:/s/Xxxx Xxxx
--------------
Name: Xxxx Xxxx
Title: Chief Financial Officer
CENTENNIAL FOODS, INC.
By:/s/Xxx Xxxxx
------------
Name: Xxx Xxxxx
Title: President and
Chief Executive Officer
EXHIBIT A
PURCHASED ASSETS
EXHIBIT A
PURCHASED ASSETS
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
Land - 133 Acres $5,000.00 $5,000.00
Process Building $238,433.09 $238,433.09
Centrifuges $157,711.62 $157,711.62
Boilers $49,065.84 $49,065.84
Storage Bins $8,761.76 $8,761.76
Electrical Equipment $109,644.24 $109.644.24
Grain Cleaning Equipment $10,413.60 $10,413.60
Miscellaneous Equipment $378.07 $378.07
Alcohol Plant Building $110,199.48 $110,199.48
Original Purchase Equipment $303,902.37 $303,902.37
Dorrclone Machinery $445.22 $445.22
Centrifuge $355,544.64 $355,544.64
Drum Dryers $103,755.09 $103,755.09
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
Packaging Machine $22,391.55 $22,391.55
Process Tanks $56,438.86 $56,438.86
Process Tank Foundation $18,409.94 $18,409.94
Evaporator Equipment $22,039.90 $22,039.90
Eriolato $10,514.11 $10,514.11
Pumps $4,749.78 $4,749.78
Sweco Screens $29,465.79 $29,465.79
Conveyors $890.19 $890.19
Centrifuge $271,263.99 $271,263.99
Piping $18,949.72 $18,949.72
Grain Bin $3,471.78 $3,471.78
Grain Cleaners $120,060.39 $120,060.39
Augers $10,157.66 $10,157.66
Air Lift System $8,852.51 $8,852.51
Boiler $6,826.85 $6,826.85
Fitzmill $865.05 $865.05
Storage Bins $4,126.96 $4,126.96
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
Auger Xxxxxx $3,673.32 $3,673.32
Conveyor System $101,530.46 $101,530.46
Toshiba Motor $4,999.83 $4,999.83
Air Cleaner $628.57 $628.57
Air Lift System $10,688.47 $10,688.47
Augers $42,387.80 $42,387.80
Boiler Pump $2,880.87 $2,880.87
Piping Equipment $6,891.61 $6,891.61
Storage Bins $19,409.60 $19,409.60
Auger Mixer $2,938.65 $2,938.65
Rotometer $8,404.55 $8,404.55
Toshiba Motor $2,309.93 $2,309.93
Boiler and Shop Building $16,256.76 $16,256.76
Boiler $34,055.05 $34,055.05
Stainless Steel Auger $4,407.98 $4,407.98
Storage Bin $72.37 $72.37
Augers $3,753.36 $3,753.36
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
Piping Equipment $635.05 $635.05
Centrifuge $3,504.70 $3,504.70
Xxxxxxxx Hammermill $3,673.32 $3,673.32
Title Fees $3,985.00 $3,985.00
IBM Wheelwriter $795.00 $795.00
Sharp Calculator $89.50 $89.50
Forklift $11,619.75 $11,619.75
Telephone System $3,009.30 $3,009.30
Telephone Switch $617.00 $617.00
Desks $1,950.60 $1,950.60
Credenza $894.10 $894.10
Chair Mat $137.65 $137.65
Chairs $1,137.40 $1,137.40
Software $2,176.00 $2,176.00
Pump - Starch Lab $1,500.00 $1,500.00
Centrico Bearing Assembly $677.40 $677.40
Oatrim Ar Conveying System $9,500.00 $9,500.00
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
7-1/2 HP U.S. Motor TEFC $225.00 $225.00
Venting $470.00 $470.00
Fan $1,796.00 $1,796.00
Xxxxxxxx Tigermag Model FM625 $6,373.00 $6,373.00
Double Drum Rolls $21,600.00 $21,600.00
Facility Welding $492.00 $492.00
Starch Slurry - Myno Pump $5,771.00 $5,771.00
Electrode/Analyzer $1,892.52 $1,892.52
Conference Table $1,230.00 $1,230.00
Impeller/Stand $232.27 $232.27
Conference Side Table $99.95 $99.95
Nat'l Gas Make-Up Air Unit $20,965.02 $20,965.02
Viscometer/Water Bath $3,804.75 $3,804.75
Over/Lab Equipment $2,520.99 $2,520.99
Valve MK80 $896.31 $896.31
Mixer $3,080.70 $3,080.70
Muffle Furnace $850.00 $850.00
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
Controllers $4,060.52 $4,060.52
Piping Equipment $6,000.00 $6,000.00
Supply Register/Elect.Equip $4,262.12 $4,262.12
Answering Machine $79.99 $79.99
Chroma Meter $6,121.75 $6,121.75
Deslecator $231.75 $231.75
LMI Pump/Piping Equipment $3,897.44 $3,897.44
Vaccum Pumps $5,500.00 $5,500.00
Ramp $1,500.00 $1,500.00
Piping Equipment $2,624.63 $2,624.63
Ramp $2.087.00 $2.087.00
Electronic Balance $1,012.67 $1,012.67
Powdered Material Attachment $245.71 $245.71
Van Guard Motor $399.00 $399.00
IEC Clinical Centrifuge $400.00 $400.00
Stator/Roter Pump $987.15 $987.15
Plant Piping Equipment $3,787.26 $3,787.26
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
SSP System $3,519.43 $3,519.43
Building Material $1,359.76 $1,359.76
U.S. Gear Motor $694.62 $694.62
Dock To Truck Plate $547.47 $547.47
Jet Drill Press $110.00 $110.00
Split Body Control Valve $3,095.00 $3,095.00
Building Equipment $400.47 $400.47
Lab Equipment $910.99 $910.99
File Cabinet $190.18 $190.99
Dietary Fiber Kit $188.66 $188.66
Cooking Loop $8,212.64 $8,212.64
Starter Motor $115.17 $115.17
Centrifuge Bearing Assembly $3,850.00 $3,850.00
Heat Sealing Equipment $1,015.35 $1,015.35
Miscellaneous Construction $256.00 $256.00
Capital Wages (Jan-Jul) $102,079.10 $102,079.10
Capital P/R Taxes (Jan-Jul) $10,625.41 $10,625.41
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
Capital Wages (August) $11,170.80 $11,170.80
Drum Dryer Building Equip $8,382.75 $8,382.75
Lab Equipment $191.12 $191.12
Wheel Barrel $92.00 $92.00
Drum Dryer Building Ditch $150.00 $150.00
Lab Tables $230.00 $230.00
Drum Dryer Foundation $1,232.25 $1,232.25
Lab Centrifuge/Equipment $6,100.00 $6,100.00
Set Up Lab Equipment $2,892.24 $2,892.24
Drum Dryer Parts $2,856.11 $2,856.11
XX-Xxxxxxxxxxx X-000 $302.75 $302.75
Lab Equipment $299.62 $299.62
Tri Clamp $347.75 $347.75
Used Table $35.00 $35.00
11CW-HSE XUK361 30A600V $709.20 $709.20
Foundation for DD Building $124.88 $124.88
New DD Dryer Building $582.40 $582.40
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
Capital Wages (September) $6,669.34 $6,669.34
Capital P/R Taxes (September) $4,086.21 $4,086.21
Mixing Pots for Lab $25.68 $25.68
DD Building Parts $48.00 $48.00
Digital Thermometer $168.24 $168.24
Table $25.00 $25.00
A&D Balance $1,124.01 $1,124.01
DD Building Parts $704.85 $704.85
Knife Temperature Tool $582.00 $582.00
DD Varidrive $4,030.00 $4,030.00
Baghouse Installation $1,432.00 $1,432.00
Electric Balance/Tubes $1,693.51 $1,693.51
Teleurite Enrich/Flaggelar $598.14 $598.14
Meter/Water Bath $530.00 $530.00
Varidrive-15HP $4,550.00 $4,550.00
Exhaust Ducting Roof $6,231.00 $6,231.00
Mikio Pulsaire Collector $3,300.00 $3,300.00
Refrigerator $100.00 $100.00
OFFICE LAB
PURCHASE PLANT AND EQUIPMENT/ EQUIPMENT/
DESCRIPTION AMOUNT LAND EQUIPMENT FURNISHINGS FURNISHINGS
--------------------------- ------------- --------- ------------- ----------- -----------
Double Drum Dryer $16,551.76 $16,551.76
Drum Dryer Building Parts $1,403.84 $1,403.84
Drum Dryer End Frames $884.00 $884.00
Stearm Trap Ventilation $1,802.00 $1,802.00
New Drum Dryer Drive $4,520.79 $4,520.79
32RPM Auto/Manual Pump $1,162.55 $1,162.55
Detech Dryer $2,039.62 $2,039.62
415-480 Vac Eclipse $3,761.25 $3,761.25
Ricoh Fax Machine $1,314.70 $1,314.70
Moyno 1,2 Pump $1,250.00 $1,250.00
Kieldah, Rapid Dist. Unit $3,185.65 $3,185.65
Metal Detector $13,680.00 $13,680.00
Computer/Printer $1,748.49 $1,748.49
Xerox Machine $2,000.00 $2,000.00
------------- --------- ------------- ----------- -----------
$2,754,737.52 $5,000.00 $2,697,363.03 $15,531.19 $38,843.30
EXHIBIT B
EXCLUDED ASSETS
EXHIBIT B
EXCLUDED ASSETS (Revised 12/18/96)
Office Computer/Programs
Office Printer
Office Pictures
Office Fax Table
Beta Glucan Pilot Plant Equipment
Bird 6" Centrifuge OBS139-F501
Day Roball Screener 18 x 36 76338
ATM 12" solid basket 50-1181
Westfalia LWA205 Centrifuge 1601991
Reliance Mixer T156H1020M-SF
Leghtnin Mixer C2 532691
Ohmite Mixer 49220
Groew Kettle 25072
1-20 Gallon Stainless Tank with Stand
All Beta Glucan Technology, Licenses, Patents, Rights, Contacts, Contracts, Know
How, Marketing Materials and Files associated with the production or sales of
Beta Glucan from cereal grains.
All cash and receivables held by CFI at closing.
All existing CFI bank accounts, Federal and State Tax ID Numbers.
All CFI Corporate documents involving board and shareholder meeting minutes,
shareholder records, shareholder certificate book and corporate seal.
EXHIBIT C
SHAREHOLDERS AGREEMENT
EXHIBIT D
ASSUMED LIABILITIES
EXHIBIT D
ASSUMED LIABILITIES
AGREED NO INTEREST
ORIGINAL BALANCE CREDITOR OR PRINCIPAL
CREDITORS DEBT INTEREST DUE BUY DOWN TO 11/01/98
--------- ---------- -------- ---------- ---------- -----------
Beaverhead Property Tax $65,000 5/6 of 1% $65,000 $65,000 No
(CFI will pay as Accounts Payable) per month
Xxx Xxxxx $500,000 0% $500,000 $100,000 Yes
Montana Dept. of Environmental Quality $214,880 7% $97,225 $30,886 Yes
Seafirst Note (Company 19) $1,184,000 5% $918,693 $516,109 Yes
Montana CDBG $780,000 5% $604,081 $368,999 Yes
Convertable Note (CFI Shareholders) $176,366 7% $176,366 $176,366 Yes
Xxxxxxxxxx/Xxxxx $68,000 7% $35,028 $6,286 Yes
REA (CFI will make payments) $50,000 7% $26,389 $26,389 No
Idaho Forest Industries $30,000 7% $30,000 $30,000 Yes
---------- ---------- ----------
$3,068,246 $2,452,782 $1,320,035
EXHIBIT E
SECURITY AGREEMENT
EXHIBIT F
EXCLUDED LIABILITIES
All liabilities not specifically listed on Exhibit D of this
Asset Purchase Agreement.
EXHIBIT G
DISCLOSURE SCHEDULE
EXHIBIT G
DISCLOSURE SCHEDULE
Exceptions to item 3.25 of the Asset Purchase Agreement are disclosed as
follows:
1) Centennial Foods, Inc. has in place a non-union agreement with
its employees that identifies hourly rates and vacation benefits.
FoodEx Montana will continue to offer the same rates and vacation
benefits to its employees.
2) Centennial Foods, Inc., has in place a 401(K) plan for its
employees which will be sponsored and continued by FoodEx
Montana.
3) Centennial Foods, Inc. has in place a health insurance plan for
its employees which will be sponsored and continued by FoodEx
Montana.
EXHIBIT H
MATERIAL CONTRACTS
EXHIBIT H
LIST OF MATERIAL CONTRACTS
1. Employment Agreement between Xxx Xxxxx and Centennial Foods, Inc.
2. Loan Agreements between Montana Department of Natural Resources and
Conservation and Xxxxxxxxxx Company (REL85-4032) and REL86-4036).
3. Agreement between Xxxxxxxxxx Company and Centennial Foods, Inc. and
Montana Department of Natural Resources and Conservation and Agreement
to amend.
4. Convertible Note Agreements.
5. Commercial/Agricultural Revolving or Draw Note - Fixed Rate between
Centennial Foods, Inc. and Xxxxxx Xxxxxx.
6. Commercial/Agricultural Revolving or Draw Note - Fixed Rate between
Centennial Foods, Inc. and Xxx Xxxxxxxxxx.
7. Loan Agreement between Centennial Foods, Inc. and Seattle-First National
Bank.
8. Assignment of Subordination Agreement and Business Loan and Credit
Agreement between Seattle-First National Bank and Company 19 General
Partnership.
9. Renewal of Note letter dated March 22, 1993 from Seattle-First National
Bank to Centennial Foods, Inc.
10. Loan Agreement between Centennial Foods, Inc. and Idaho Forest
Industries.
11. Mortgage between Centennial Foods, Inc. and the State of Montana,
Department of Commerce.
12. Loan Agreement between Centennial Foods, Inc. and Beaverhead County.
13. Amendment to Agreement between Centennial Foods, Inc. and Beaverhead
County.
14. Second Amendment to Agreement between Centennial Foods, Inc. and
Beaverhead County.
15. Promissory Note in favor of Beaverhead County.
16. Promissory Notes in favor of Vigilante Electric Cooperative, Inc. dated
November 5, 1990 and April 10, 1992.
17. Security Agreement between Centennial Foods, Inc. and State of Montana.
18. Subordination Agreements from Harrington, Meyers, State of Montana
(Agricultural Council), Beaverhead County, Vigilante and Xxx Xxxxx to
Seattle-First National Bank.
19. Commercial Security Agreement between Seattle-First National Bank and
Centennial.
20. Business Loan and Credit Agreement between Seattle-First National Bank
and Centennial.
21. Loan Modification Agreement between Seattle-First National Bank and
Centennial.
22. Contract between Centennial and Heinz North America dated December 6,
1996.
EXHIBIT I
EMPLOYMENT AGREEMENT
EXHIBIT J
NONCOMPETITION, NONDISCLOSURE AND NONSOLICITATION AGREEMENT
This Noncompetition, Nondisclosure and Nonsolicitation Agreement is made
as of the 19th day of March, 1997 between Xxx Xxxxx an individual
("Shareholder"), Food Extrusion, Inc., a Nevada corporation ("Foodex") and Food
Extrusion Montana, Inc., a Montana corporation and a wholly-owned subsidiary of
Foodex ("Purchaser" and, together with Foodex, the "Company").
RECITALS
A. Shareholder owns shares of Common Stock of Centennial Foods, Inc., an
Idaho corporation ("Centennial") the Company.
B. Foodex, Purchaser and Centennial have entered into that certain Asset
Purchase Agreement dated as of January 2, 1997 (the "Purchase Agreement") which
provides for the sale of certain assets of Centennial to the Company and the
assumption of certain liabilities of Centennial by the Company.
C. The parties hereto agree that the Company has paid good and valuable
consideration for the purchase of the Assets pursuant to the terms of the
Purchase Agreement.
D. The parties further agree that this Agreement is reasonable and
necessary to protect the value of the goodwill and the proprietary information
of the business being transferred by Centennial to the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein, the
parties hereto, intending to be legally bound, do hereby agree as follows:
1. Covenant Not to Compete.
(a) In connection with the transactions contemplated by the
Purchase Agreement, Shareholder hereby agrees that he shall not, either directly
or indirectly, carry on or engage in as an owner, manager, operator, employee,
salesman, agent, consultant, or other participant, any business similar to that
presently conducted by the Company, including, but not limited to, any business
involving (i) any commercial application involving rice bran or (ii)
commercialization involving chemical or mechanical manipulation of rice bran
after it is separated from the rice kernel (collectively, the "Business") in any
of the counties in the fifty United States or any other country for as long as
the Company, or any person deriving title to the goodwill of the Company,
carries on the Company's Business in substantially the manner as shall be
conducted by the Company after the closing for the transactions contemplated by
the Purchase Agreement.
(b) The covenant not to compete in this Section 1 is intended as
a separate covenant with respect to each county set forth above. If any one of
the covenants in this Section 1 is declared invalid for any reason, such ruling
shall not affect the validity of the remaining covenants. The other covenants in
this covenant not to compete shall remain in effect as if this Agreement has
been executed without the invalid covenants. The parties hereby covenant and
agree that they intend that the remaining covenants of this Section 1 shall
continue to be enforceable without any covenants that have been declared
invalid.
2. Non-Solicitation of Customers. Shareholder agrees that he shall not,
on behalf of himself or on behalf of any other individual, association or
entity, directly or indirectly, as an agent or otherwise, in any other manner
solicit, influence or encourage any customers of the Company to take away or to
divert or direct its business from the Company to any other person or entity by
or with which Shareholder is employed, associated, affiliated or otherwise
related.
3. Noninterference with Employees. Shareholder agrees that he will not,
directly or indirectly, encourage, induce or entice any employee of the Company
to leave the employment of the Company.
4. Proprietary and Confidential Information. Shareholder has had access
to proprietary information with respect to the Company's business including, but
not limited to operating records, accounting records, maintenance records and
other proprietary data and trade secrets relating to the services, customers,
sales or business affairs of the Company's business (collectively, "Confidential
Information"). Shareholder agrees to keep all such Confidential Information in
confidence during the term of this Agreement and at anytime thereafter and shall
not disclose any of such Confidential Information to any other person, except to
the extent such disclosure is (i) required by applicable law, (ii) lawfully
obtainable from other sources or (iii) authorized in writing by the Company.
5. Termination. This Agreement shall terminate on the earlier of (i) one
(1) year after any termination for cause as set forth in Section 5.2 of that
certain Employment Agreement dated March 19, 1997 by and between Foodex and
Shareholder (the "Employment Agreement"), (ii) upon any termination without
cause pursuant to the Employment Agreement or (iii) upon any event of default
and foreclosure of collateral pursuant to that certain Security Agreement dated
as of March 19, 1997 by and between Purchaser and Centennial Foods, Inc.
6. Miscellaneous.
(a) Governing Law. This Agreement shall be construed under and
governed by the laws of the State of California. Any action brought by any party
in any court, whether Federal or State, shall be brought in Sacramento County,
State of California and the parties hereby waive all questions of personal
intended as a jurisdiction or venue for the purposes of carrying out this
provision.
(b) Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given if mailed by
certified express mail or delivered by Federal Express or other nationally
recognized carrier guaranteeing overnight delivery:
TO FOODEX
OR PURCHASER: Food Extrusion, Inc.
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, XX 00000
Attention: President
with a copy to:Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Esq.
TO SHAREHOLDER: Xxx Xxxxx
Food Extrusion Montana, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
(c) Entire Agreement. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
any prior agreements, undertakings, commitments and practices regarding such
subject matter.
(d) Amendment. No amendment or modification of the terms of this
Agreement shall be valid unless made in writing and duly executed by both
parties.
(e) Assignment. This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns and any such
successor or assignee shall be deemed substituted for the Company under the
terms of this Agreement for all purposes. As used herein, "successor" and
"assignee" shall include any person, firm, corporation or other business entity
which at any time, whether by purchase, merger or otherwise, directly or
indirectly acquires the stock or assets of the Company. The obligations and
duties of Shareholder hereunder are personal and otherwise not assignable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date set forth above.
"FOODEX"
FOOD EXTRUSION, INC.,
By:
---------------------------
Name: Xxxxxx X. XxXxxx
Title: Chief Executive Officer
"PURCHASER"
FOOD EXTRUSION MONTANA, INC.
By:
---------------------------
Name: Xxxx Xxxx
Title: Chief Financial Officer
"SHAREHOLDER"
-----------------------------------
Signature
-----------------------------------
Please print name
EXHIBIT K
PROPRIETARY INFORMATION AND EMPLOYEE INVENTIONS AGREEMENT
PROPRIETARY INFORMATION AND EMPLOYEE
INVENTIONS AGREEMENT
IT IS AGREED as of March 19, 1997 by and between Food Extrusion,
Inc., a Nevada corporation ("Foodex") and Food Extrusion Montana, Inc., a
Montana corporation and a wholly-owned subsidiary of Foodex ("Newco" and,
together, with Foodex, the "Company") and Xxx Xxxxx (hereinafter "Employee"), as
follows:
1. Employment. The Company has hired Employee to work in the
position of President. Employee acknowledges that, as a part of his employment
with the Company, Employee may be expected to create inventions and/or ideas of
value to the Company and that Employee will have access to certain information
concerning the Company and its business which the Company protects against
unauthorized disclosure to others.
2. Confidential Information of Others. Employee represents to the
Company that Employee does not have in Employee's possession any confidential or
proprietary documents belonging to others, and represents and agrees that he
will not use, disclose to the Company, or induce the Company to use, such
documents or any proprietary information of others during the period of his
employment. Employee represents and warrants that employment by the Company will
not require Employee to violate any obligation to or confidence with another.
3. Definition of Subsidiary. As used herein, the term
"Subsidiary" means any corporation in which not less than 50% of the outstanding
capital stock having voting power to elect a majority of its Board of Directors
is owned, directly or indirectly, by the Company.
4. Definition of Proprietary Information. As used herein, the
term "Proprietary Information" refers to any and all information of a
confidential, proprietary, or secret nature which is or may be either applicable
to, or related in any way to (i) the business, present or future, of the Company
or any Subsidiary, (ii) the research and development or investigations of the
Company or any Subsidiary, or (iii) the business of any customer of the Company
or of any Subsidiary. Proprietary Information includes, for example and without
limitation, trade secrets (as defined by California Civil Code ss. 3426),
processes, formulas, data, know-how, improvements, inventions, techniques,
marketing plans and strategies, and information concerning customers or vendors.
5. Proprietary Information to be Kept in Confidence. Employee
acknowledges that the Proprietary Information is a special, valuable and unique
asset of the Company, and Employee agrees at all times during the period of his
employment and thereafter to keep in confidence and trust all Proprietary
Information. Employee agrees that during the period of his employment with the
Company, and thereafter, Employee will not directly or indirectly use the
Proprietary Information other than in the course of performing his duties as an
employee of the Company, nor will Employee directly or indirectly disclose any
Proprietary Information or anything relating thereto to any person or entity,
except in the course of performing his duties as an employee of the Company and
with the consent of the Company. Employee will abide by the Company's policies
and regulations, as established from time to time, for the protection of its
Proprietary Information.
6. Other Employment. Employee agrees that during the period of
his employment by the Company, Employee will not, without the Company's prior
written consent, directly or indirectly engage in any employment, consulting or
activity other than for the Company relating to any line of business in which
the Company is now or at such time is engaged, or which would otherwise conflict
with Employee's employment obligations to the Company.
7. Not Employment Contract. Nothing in this Agreement shall
confer upon Employee any right to continue in the employ of the Company or shall
interfere with or restrict in any way the rights of Employee or the Company,
which are hereby expressly reserved, to terminate Employee's employment at any
time for any reason whatsoever, with or without cause, subject to the provisions
of applicable law. This is not an employment contract.
8. Return of Materials at Termination. In the event of any
termination of his employment, whether or not for cause and whatever the reason,
Employee will promptly deliver to the Company, or any Subsidiary designated by
it, all documents, data, records and other information pertaining to his
employment. Employee shall not take any documents or data, or any reproduction
or excerpt of any documents or data, containing or pertaining to any Proprietary
Information upon leaving the Company.
9. Disclosure to Company; Inventions as Sole Property of Company.
(a) Employee agrees promptly to disclose to the Company any and
all inventions, discoveries, improvements, trade secrets, formulas, techniques,
processes, and know-how, whether or not subject to patent, trademark, copyright,
trade secret or mask work protection and whether or not reduced to practice,
conceived or learned by the Employee (i) prior to Employee's employment with the
Company, but excluding beta gluten processing proprietary information and (ii)
during employment with the Company, either alone or jointly with others, which
relate to or result from the actual or anticipated business, work, research or
investigations of the Company or any Subsidiary, or which result, to any extent,
from use of the Company's premises or property (hereinafter collectively
referred to as the "Inventions").
(b) Employee acknowledges and agrees that all the Inventions
shall be the sole property of the Company or any other entity designated by it,
and Employee hereby assigns to the Company his entire right and interest in and
to all the Inventions; provided, however, that such assignment does not apply to
any Invention made during Employee's employment with the Company which qualifies
fully under the provisions of Section 2870 of the California Labor Code, which
are set forth in Exhibit A attached hereto. The Company or any other entity
designated by it shall be the sole owner of all domestic and foreign rights
pertaining to the Inventions. Employee further agrees as to all the Inventions
to assist the Company in every way (at the Company's expense) to obtain and from
time to time enforce patents on the Inventions in any and all countries. To that
end, by way of illustration but not limitation, Employee will testify in any
suit or other proceeding involving any of the Inventions, execute all documents
which the Company reasonably determines to be necessary or convenient for use in
applying for and obtaining patents thereon and enforcing same, and execute all
necessary assignments thereof to the Company or persons designated by it.
Employee's obligation to assist the Company in obtaining and enforcing patents
for the Inventions shall continue beyond the termination of his employment with
the Company, but the Company shall compensate Employee at a reasonable rate
after such termination for the time actually spent by Employee at the Company's
request on such assistance.
10. Excluded Inventions. All inventions, if any, which Employee
made prior to employment by the Company are included within the scope of this
Agreement except for inventions, discoveries, or improvements relating to beta
gluten processing proprietary information.
11. Injunction. Employee agrees that it would be difficult to
measure damage to the Company from any breach of Employee of the promises set
forth in Paragraphs 5, 6, 8 and 9 herein, and that injury to the Company from
any such breach would be impossible to be calculated, and that money damages
would therefore be an inadequate remedy for any such breach. Accordingly,
Employee agrees that if Employee shall breach any provision of Paragraphs 5, 6,
8 and 9, or any of them, the Company shall be entitled, in addition to all other
remedies it may have, to an injunction or other appropriate orders to restrain
any such breach by Employee without showing or proving any actual damage
sustained by the Company.
12. General.
(a) To the extent that any of the agreements set forth herein, or
any word, phrase, clause, or sentence thereof shall be found to be illegal or
unenforceable for any reason, such agreement, word, clause, phrase or sentence
shall be modified or deleted in such a manner so as to make the agreement as
modified legal and enforceable under applicable laws, and the balance of the
agreements or parts thereof, shall not be affected thereby, the balance being
construed as severable and independent.
(b) This Agreement shall be binding upon Employee and his heirs,
executors, assigns, and administrators and shall inure to the benefit of the
Company, its successors and assigns and any Subsidiary.
(c) This Agreement shall be governed by the laws of the State of
California, which state shall have jurisdiction of the subject matter hereof.
(d) This Agreement may be signed in two counterparts, each of
which shall be deemed an original and which together shall constitute one
instrument.
(e) The use of the masculine and feminine genders are used in the
alternative in this Agreement and the use of one excludes the other and is to be
interpreted solely with reference to the employee named specifically herein. The
singular includes the plural, as appropriate.
(f) This Agreement represents the entire agreement between
Employee and the Company with respect to the subject matter hereof, superseding
all previous oral or written communications, representations or agreements. This
Agreement may be modified only by a duly authorized and executed writing.
FOOD EXTRUSION, INC.,
By:
---------------------
Name: Xxxxxx X. XxXxxx
Title: Chief Executive Officer
FOOD EXTRUSION MONTANA, INC.
By:
---------------------
Name: Xxxx Xxxx
Title: Chief Financial Officer
EMPLOYEE:
---------------------------
Signature
---------------------------
Print Name
EXHIBIT L
INTANGIBLE PROPERTY
None.
