EXHIBIT 2.1
SECOND AMENDMENT OF
AGREEMENT FOR PURCHASE AND SALE OF
LIMITED LIABILITY COMPANY UNITS
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This Second Amendment of Agreement for Purchase and Sale Of Limited
Liability Company Units dated January 28, 2004, as amended May 12, 2004 (the
"Second Amendment" and "Agreement," respectively) is entered into effective as
of January 12, 2006, by and among Monterey Gourmet Foods, a Delaware corporation
(the "Purchaser"), CIBO Naturals LLC, a Washington limited liability company
("CIBO"), and Suekat LLC, a Washington limited liability company ("Suekat" or
"Seller").
A. Purchaser and Suekat are the owners of all of the outstanding
membership interests in CIBO. Purchaser is the owner of 1,564,815 Units,
comprising approximately 84.5% of the outstanding Units, and Suekat is the owner
of 287,038 Units, comprising approximately 15.5% of the outstanding Units (the
"Suekat Units).
B. Purchaser desires to purchase from Suekat, and Suekat desires
to sell to Purchaser, the Suekat Units on terms which differ from those set
forth in the Agreement (the "Second Purchase).
THEREFORE this Amendment amends the Agreement as follows:
(d) 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 three hundred thousand (300,000) unregistered shares of Purchaser's common
stock (the "Shares"). Certificates for the Shares shall be delivered to Seller
by the Purchaser at the Second Closing and shall be imprinted with the following
legend:
The shares represented by this certificate have not been
registered under the Securities Act of 1933 ("The Act") and
are "restricted securities" as that term is defined in Rule
144 under the Act. The shares may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability
of which is to be established to the satisfaction of the
Company.
Purchaser covenants and agrees that it will file on a timely basis all reports
which it is required to file pursuant to sections 13 or 15(d) of the Securities
Exchange Act during the period of two years commencing with the date of the
Second Closing.
2. Closings. Section 1.3 is amended to read as follows:
Unless the parties shall agree otherwise in writing, and subject to the
satisfaction or waiver of all conditions to closing set forth in Article 5, the
closing of the Initial Purchase shall occur January 28, 2004 (the "First
Closing"), and the closing of the Second Purchase shall occur January 12, 2006
(the "Second Closing") at such location or locations as the parties shall
mutually agree.
3. Purchaser's Representations and Warranties. Article 2 is amended by the
addition of the following new section 2.8:
Common Stock. The Common Stock of Purchaser is registered with the
Securities and Exchange Commission (the "SEC") pursuant to section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and is listed
for trading on the Nasdaq(R) National Market System. The Shares, when issued and
delivered in accordance with the terms hereof, shall be duly issued, fully paid
and non-assessable.
4. Article 3. Article 3 is amended in its entirety to read as follows:
SELLER'S INVESTMENT REPRESENTATIONS.
Seller makes the following representations and covenants, both at the
execution hereof and at the Second Closing:
3.1 The Shares Are Unregistered. Seller understands that the offer
and sale of the Shares of the Purchaser to be acquired by Seller hereunder has
not been registered under the Securities Act of 1933, as amended (the
"Securities Act") or any state securities law, and that the Shares are being
sold pursuant to exemptions from registration contained in the Securities Act
based upon the representations of Seller contained herein.
3.2 No Advertising. Seller knows of no public solicitation or
advertisement of an offer in connection with the proposed sale of the Shares to
be acquired by Seller hereunder.
3.3 No Distribution or Registration; Limitations Upon Resale.
Seller is acquiring the Shares for its own account for investment and not as a
nominee and not with a view to the distribution thereof. Seller understands
that, except as otherwise provided in this Agreement, Seller must bear the
economic risk of this investment indefinitely unless the sale of the Shares to
Seller is registered pursuant to the Securities Act, or an exemption for the
resale of the Shares by Seller is available, and Monterey has no present
intention to register the sale of the Shares to Seller hereunder. Seller further
understands that there is no assurance that any exemption from the Securities
Act will be available or, if available, that such exemption will allow Seller to
dispose of or otherwise transfer any or all of the Shares under the
circumstances, in the amounts or at the times Seller might propose.
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3.4 Access to Information. Seller has been given full access to
all publicly available information concerning Purchaser and has had the
opportunity to ask questions of, and receive satisfactory answers from, the
officers of Purchaser concerning its business.
3.5 Seller's Experience and Capacity for Risk. By reason of the
business or financial experience of its managers, Seller has the capacity to
protect its own interests in connection with the purchase of the Shares
hereunder and has the ability to bear the economic risk (including the risk of
total loss) of its investment.
3.6 Disposition of Shares. Seller covenants that it will not make
any sale, transfer or other disposition of the Shares in violation of the
Securities Act, the Exchange Act or the rules of the SEC promulgated thereunder.
5. Article 5.
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(a) Paragraphs (c), (e), (f) and (g) of Section 6.1 are deleted in
their entireties.
(b) Section 6.3 is added as follows:
6.3 Piggyback Registration
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(a) If at any time or from time to time, the Purchaser shall determine
to register any of its common stock, for its own account or the account of any
of its shareholders, other than a registration relating solely to employee
benefit plans, or a registration relating solely to an SEC Rule 145 transaction,
a transaction relating solely to the sale of debt or convertible debt
instruments or a registration on any form (other than form X-0, X-0 or S-3, or
their successor forms) which does not include substantially the same information
as would be required to be included in a registration statement covering the
sale of Registrable Securities, the Purchaser will:
(i) give Seller written notice thereof as soon as practicable
prior to filing the registration statement; and
(ii) include in such registration and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or request, made within fifteen (15) days after receipt of such written notice
from the Purchaser, by the Seller , except as set forth in subsection (b) below.
For purposes of this section, the term Registrable Securities refers to the
Shares as defined by section 1.2(b).
(b) If the registration is for a registered public offering involving
an underwriting, the Purchaser shall so advise the Seller as a part of the
written notice given pursuant to subsection (a)(i). In such event, the right of
Seller to registration pursuant to this section shall be conditioned upon
Seller's participation in such underwriting and the inclusion of Seller's
Registrable Securities in the underwriting to the extent provided herein. If
Seller proposes to distribute its securities through such underwriting, it shall
(together with the Purchaser and the other holders distributing their securities
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through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Purchaser.
(c) Notwithstanding any other provision of this section, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
number of Registrable Securities to be included in the registration and
underwriting or exclude Registrable Securities entirely (provided that no shares
held by officers and directors of the Purchaser are included in the registration
and underwriting). The Purchaser shall so advise the Seller and any other
persons distributing their securities through such underwriting pursuant to
piggyback registration rights similar to this section, and the number of shares
of Registrable Securities and other securities that may be included in the
registration and underwriting shall be allocated among Seller and other persons
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by Seller and other securities held by other persons
at the time of filing the registration statement which are not excluded by the
managing underwriter.
(d) If Seller disapproves of the terms of any such underwriting, it may
elect to withdraw therefrom by written notice to the Purchaser and the managing
underwriter. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
IN WITNESS WHEREOF, the parties have executed this Second
Amendment by their duly authorized officers, effective as of the date set forth
above.
Date: January 12, 2006 MONTEREY GOURMET FOODS, INC.
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
Date: January 12, 2006 CIBO NATURALS LLC
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
Date: January 12, 2006 SUEKAT LLC
By: /s/ XXXXX XXXXXXXXX
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Xxxxx Xxxxxxxxx, Manager
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