Exhibit 10.19
AMENDMENT OF
AGREEMENT FOR PURCHASE AND SALE OF
LIMITED LIABILITY COMPANY UNITS
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This Amendment of Agreement for Purchase and Sale Of Limited Liability
Company Units (the "Amendment" and "Agreement," respectively) is entered into
effective as of May 12, 2004, by and among Monterey Pasta Company, a Delaware
corporation (the "Purchaser"), CIBO Naturals LLC, a Washington limited liability
company("CIBO"), Suekat LLC, a Washington limited liability company ("Suekat")
and Obic, Inc., a Washington corporation ("Obic"), Purchaser, Suekat and Obic
being owners of all of the outstanding membership interest in CIBO.
WHEREAS the Purchaser and Obic have entered into a Unit Purchase
Agreement dated May 12, 2004, pursuant to which Purchaser has agreed to purchase
from Obic, and Obic has agreed to sell to Purchaser, those units of membership
interest in CIBO not previously acquired by Purchaser pursuant to the Agreement;
and
WHEREAS the Purchaser, Suekat and Obic desire to make such changes in
the Agreement as they acknowledge to be necessary or desirable in consequence of
the Unit Purchase Agreement.
THEREFORE this Amendment amends the Agreement as follows:
1. Purchase and Sale. Section 1.1(d) is amended to read as follows:
At the Second Closing (as defined below), Suekat will sell to the
Purchaser and the Purchaser will purchase from Suekat the remainder of its
Units, representing fifteen and one-half percent (15.5%) of all Membership
Interests, so that, immediately following the Second Closing, Purchaser shall be
the owner of one hundred percent (100%) of the Membership Interests in CIBO (the
"Second Purchase").
2. Purchase Price. Section 1.2(b) is amended to read as follows:
The total price to be paid by Purchaser for the Second Purchase shall
be paid in cash to Suekat at the Second Closing, in an amount computed in
accordance with the following formula:
[Applicable Percentage x (4.5 x EBT)] - Remaining Debt
where:
(i) The Applicable Percentage shall be fifteen and one-half
percent (15.5%) plus five-tenths percent (.5%) for each one hundred thousand
dollars ($100,000) of EBT which exceeds two million dollars ($2,000,000), up to
a maximum of twenty-five and two-tenths percent (25.2%).
(ii) EBT shall be earnings before taxes of CIBO for the twelve
months immediately prior to the Second Closing, computed in accordance with
generally accepted accounting principles.
(iii) Remaining Debt shall be equal to (A) Two Million Dollars
($2,000,000), minus (B) the product of (1) the Debt Adjustment Percentage times
(2) CIBO's cumulative net income, computed in accordance with generally accepted
accounting principles, for the four calendar years immediately prior to the
Second Closing. Remaining Debt shall not be less than zero.
(iv) The Debt Adjustment percentage shall be twenty percent
(20%) plus five-tenths percent (.5%) for each one hundred thousand dollars
($100,000) of EBT which exceeds two million dollars ($2,000,000), up to a
maximum of thirty-two and one-half percent (32.5%).
3. Conditions to Second Purchase Obligations. Subsections 5.3(a) and (b)
are amended so that:
(a) In each instance where the term "the Sellers" occurs, the term
"Suekat" shall be substituted.
(b) In each instance where the term "Sellers" occurs, the term "Suekat"
shall be substituted.
(c) In each instance where the term "Sellers'" occurs, the term
"Suekat's" shall be substituted.
(d) In each instance where the term "each Seller" occurs, the term
"Suekat" shall be substituted.
(e) In each instance where the term "either Seller's" or "either
Seller" occurs, the term "Suekat's" or "Suekat," respectively, shall be
substituted.
(f) In paragraph 5.3(a)(vi), the word "them" shall be replaced by "it."
4. Notification. Section 9.3 is amended so that "To Sellers" is amended to
read "To Suekat" and the following is added:
To Obic X.X. Xxxxx, Xx.
Xxxxx Xxxxxx Droppert PLLC
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized officers, effective as of the date set forth above.
Date: May 12, 2004 MONTEREY PASTA COMPANY
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
Date: May 12, 2004 CIBO NATURALS LLC
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
Date: May 12, 2004 SUEKAT LLC
By: /s/ XXXXX XXXXXXXXX
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Xxxxx Xxxxxxxxx, Manager
Date: May 12, 2004 OBIC, INC
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx, President
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