ASSET PURCHASE, SETTLEMENT AND MUTUAL RELEASE AGREEMENT BETWEEN BETTER BIODIESEL, INC. A Colorado Corporation (BBI) and RON CRAFTS, MARY CRAFTS, JAMES CRAWFORD, JOHN CRAWFORD LYNN DEAN CRAWFORD and CULINARY CRAFTS, LLC, a Utah Liability Company...
ASSET
PURCHASE, SETTLEMENT AND MUTUAL RELEASE AGREEMENT
BETWEEN
A
Colorado Corporation
(BBI)
and
▇▇▇
CRAFTS, ▇▇▇▇ CRAFTS, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ and
CULINARY CRAFTS, LLC, a Utah Liability Company
(Shareholders)
December
__, 2007
ASSET
PURCHASE, SETTLEMENT AND MUTUAL RELEASE AGREEMENT
This
Asset Purchase, Settlement and
Mutual Release Agreement (this “Agreement”) is made this ____ day of
December, 2007 (the “Effective Date”), by and between Better Biodiesel,
Inc., a Colorado corporation (“BBI”), Domestic Energy Partners, LLC, a
Utah limited liability company, and wholly owned subsidiary of Better Biodiesel
(“DEP”), and ▇▇▇ Crafts, ▇▇▇▇ Crafts (collectively with ▇▇▇ Crafts, the
“Crafts”), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
(collectively with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇, the “Crawfords”),
and Cullinary Crafts, LLC, a Utah limited liability company (collectively with
the Crafts and the Crawfords, the “Shareholders”). The parties
hereto are referred to herein each as a “Party” and collectively as the
“Parties.”
WHEREAS,
BBI is engaged in the business
of biodiesel technology development and biodiesel fuel production and
distribution (the “Business”);
WHEREAS,
BBI owns 100% of the
membership interests in DEP (the “DEP Membership
Interests”);
WHEREAS,
for various business reasons, it is the desire of BBI to separate a portion
of
the Business (the “Separated Business”) from BBI, and to enable the
Shareholders to concentrate their efforts to operate the Separated Business
through DEP while BBI thereafter continues to develop, diversify, and operate
the remaining portion of the Business;
WHEREAS,
excepting the Separated Business, BBI and its management do not intend to sell
Business;
WHEREAS,
neither DEP nor the Shareholders have any plan or intention to sell DEP or
the
assets or operations of DEP;
NOW
THEREFORE, in consideration of the foregoing, the mutual covenants of the
Parties set forth in this Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, agree as follows:
Recitals.
The
foregoing recitals are hereby
acknowledged to be true and are hereby incorporated into the Agreement as if
set
forth herein in full.
Definitions.
“Affiliate”
has
the meaning set
forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange
Act.
“Assigned
Assets” has the
meaning set forth in Section 3(a) below.
“Assigned
Contracts” has the
meaning set forth in Section 3(c) below.
“Assumed
Liabilities” has the
meaning set forth in Section 3(b) below.
“BBI”
has
the meaning set forth
in the preface above.
“Business”
has
the meaning set
forth in the preface above.
“Claims”
has
the meaning set
forth in Section 8 below.
“Closing”
has
the meaning set
forth in Section 4 below.
“Crafts”
has
the meaning set
forth in the preface above.
“Crawfords”
has
the meaning set
forth in the preface above.
“Damages”
shall
mean any and all
costs, losses, damages, liabilities, demands, claims, suits, actions, judgments,
causes of action, assessments or expenses, including interest, penalties, fines
and attorneys' fees and expenses incident thereto, incurred in connection with
any claim for indemnification arising out of this Agreement, and any and all
amounts paid in settlement of any such claim.
“DEP”
shall
mean Domestic Energy
Partners, LLC, a Utah limited liability company, and its wholly owned
subsidiaries, Domestic Energy Leasing, LLC, a Utah limited liability company,
and Domestic Energy Licensing, LLC, a Utah limited liability
company.
“DEP
Membership Interest” has
the meaning set forth in the preface above.
“Effective
Date” the meaning set
forth in the preface above.
“Liability”
means
any liability
(whether known or unknown, whether asserted or unasserted, whether absolute
or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due), including any liability for
Taxes.
“Party”
and
“Parties”
have the meanings set forth in the preface above.
“Person”
means
an individual, a
partnership, a corporation, an association, a joint stock company, a trust,
a
joint venture, an unincorporated organization or a governmental entity (or
any
agency or political subdivision thereof).
“Separated
Business” has the
meaning set forth in the preface above.
“Shareholders”
has
the meaning
set forth in the preface above.
“Tax”
means
any federal, state,
local or foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental
assessments, customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative, minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty
or addition thereto, whether disputed or not.
Basic
Transaction.
(a) Transfer
of Assets to DEP. BBI has assigned, transferred, and delivered to
DEP all of the personal property, assets, tangible and intangible, including
the
goodwill associated therewith, in connection with, and that are necessary and
desirable in, the operation of the Separated Business, including but not limited
to the assets described in Exhibit C (the “Assigned Assets”) of each of
the consent resolutions of BBI and DEP (including its subsidiaries), dated
as of
the date hereof, approving the transactions contemplated by this Agreement
(collectively, the “Consent Resolutions”), free and clear of any and all
current and existing debts, obligations, claims, limitations, liens and/or
any
other encumbrances whatsoever, excepting any professional liens that may exist
in favor of the law firm of ▇▇▇▇▇▇▇ Nydeggar on the intellectual property
included in the Assigned Assets.
(b) Assumption
of Liabilities by DEP. On and subject to the terms and conditions of this
Agreement, the Shareholders agree and acknowledge that DEP has assumed all
of
BBI’s liabilities, and have retained DEP’s liabilities, if any, in connection
with, or obligations owed to, any of ▇▇▇ Crafts, Culinary Crafts, LLC, or the
Crawfords, as listed on Exhibit D of the Consent Resolutions (the “Assumed
Liabilities”). Except for the Assumed Liabilities, the Parties
agree and acknowledge that DEP has no liabilities other than the Assumed
Liabilities. The Parties acknowledge the potential existence of
professional liens in favor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ that may exist on the intellectual
property included in the Assigned Assets and that DEP is not assuming any
payment obligation to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(c) Transfer
of Contracts to DEP. BBI has, and has caused its subsidiaries to,
assign, transfer, and convey to DEP all of the contracts, in connection with,
and that are necessary and desirable in, the operation of the Separated
Business, including but not limited to the contracts described in Exhibit E
of
the Consent Resolutions (the “Assigned Contracts”), free and clear of any
and all debts, obligations, claims, limitations, liens and/or any other
encumbrances whatsoever (excepting those contractual obligations arising
directly from the Assigned Contracts).
(d) Distribution
of DEP Membership Interests. At the Closing (as defined below), BBI
will distribute 100% of the outstanding membership interests of DEP to the
Shareholders, in the amounts shown on Schedule 3(c) hereto, in consideration
of
and exchange for 15,750,000 shares of common stock in BBI held by the
Shareholders in the amounts shown in Schedule 3(c) hereto (the “BBI
Stock”). At the Closing, the Shareholders shall deliver one or
more certificates representing such shares in BBI.
Closing.
The
closing of the transaction
contemplated by this Agreement (the “Closing”) will take place at the
offices of BBI, or such other location agreed to by the Parties, and shall
be
effective upon the Shareholder’s transfer of the BBI stock to the
BBI.
Representations
and Warranties of BBI. BBI represents and warrants to the Shareholders that
the statements contained in this Section 4 are correct and complete as of the
Effective Date.
(a) Organization
of the BBI. Better Biodiesel, Inc. is a corporation duly
organized, validly existing and in good standing under the laws of the state
of
Colorado. Domestic Energy Partners, LLC, is a limited liability
company and wholly owned subsidiary of Better Biodiesel, Inc., validly existing
and in good standing under the laws of the state of Utah. Domestic Energy
Leasing, LLC, is a Utah limited liability company and wholly owned subsidiary
of
Domestic Energy Partners, LLC, and Domestic Energy Licensing, LLC, is a Utah
limited liability company and wholly owned subsidiary of Domestic Energy
Partners, LLC; both validly existing and in good standing under the laws of
the
state of Utah.
(b) Authorization
of Transaction. BBI has full power and authority (including full
corporate power and authority) to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement constitutes the
valid and legally binding obligation of BBI, enforceable in accordance with
its
terms and conditions.
(c) Assignment
of Assets. BBI has assigned, transferred, and delivered to DEP all of the
Assigned Assets.
(d) Title
to Assets. At the execution of this Agreement by the Parties, DEP
will have good and marketable title to all of the Assigned Assets, free and
clear of any Liabilities (other than the Assumed Liabilities), including all
debts, obligations, claims, limitations, liens, security interests, restrictions
on transfer and/or any other encumbrances whatsoever on Assigned Assets,
excepting any professional liens in favor of the law firm of ▇▇▇▇▇▇▇ Nydeggar
that may exist on the intellectual property included in the Assigned
Assets.
(e) Assumed
Liabilities. At the execution of this Agreement by the Parties,
DEP will have no Liabilities other than the Assumed Liabilities, and there
will
exist no defaults or notices thereof with respect to any of the Assumed
Liabilities.
(f) Assignment
of Contracts. At the execution of this Agreement by the Parties, DEP will
have no contracts other than the Assigned Contracts. All of the
Assigned Contracts are in full force and effect, and there are no breaches,
defaults, or notices of thereof with respect to any of the Assigned
Contracts.
(g) Noncontravention. Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency, or court to which BBI or
any
of its subsidiaries is subject or, as applicable, any provision of its charter
or bylaws or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, or require any notice under any
agreement, contract, lease, license, instrument or other arrangement to which
BBI or any of its subsidiaries is a party or by which any of the Shareholders
is
bound or to which BBI’s or any of its subsidiaries’ assets is
subject. The Shareholders do not need to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or governmental agency in order for the Parties to consummate the transactions
contemplated by this Agreement.
(h) Brokers’
Fee. BBI will have no Liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which the Shareholders could become liable
or
obligated.
(i) Limitation
of Representations and Warranties. Except for the representations
and warranties of the Shareholders expressly set forth in Section 6 below,
BBI
has not relied upon any representations and warranties in making its
determination to enter into this Agreement and consummate the matters provided
for herein
(j) Disclosure. The
representations and warranties contained in this Section 5 above do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements and information contained in this
Section 5 above not misleading.
(k) Indemnification.
In the event BBI (i) breaches or is deemed to have breached any of the
representations and warranties contained in this Agreement or (ii) fails to
perform or comply with any of the covenants and agreements set forth in this
Agreement, BBI shall hold harmless, indemnify and defend Shareholders, and
each
of its directors, officers, shareholders, attorneys, representatives and agents,
from and against any Damages incurred or paid by the acquirer to the extent
such
Damages arise or result from a breach by BBI of any such representations or
warranties or a violation of any covenant in this Agreement.
Representations
and Warranties of the Shareholders. The Shareholders represent and warrant
to BBI that the statements contained in this Section 6 are correct and complete
as of the Effective Date.
(a) Organization
of Culinary Crafts. Culinary Crafts, LLC, is a limited liability
company duly organized, validly existing, and in good standing under the laws
of
the State of Utah.
(b) Authorization
of Transaction. Each of the Shareholders has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of the
Shareholders, enforceable in accordance with its terms and
conditions.
(c) Noncontravention. Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency, or court to which any of
the
Shareholders is subject or, as applicable, any provision of its charter or
bylaws or (ii) conflict with, result in a breach of, constitute a default under,
result in the acceleration of, create in any party the right to accelerate,
terminate, modify or cancel, or require any notice under any agreement,
contract, lease, license, instrument or other arrangement to which any of the
Shareholders is a party or by which any of the Shareholders is bound or to
which
any of the Shareholders’ assets is subject. The Shareholders do not
need to give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order for
the
Parties to consummate the transactions contemplated by this
Agreement.
(d) Brokers’
Fee. The Shareholders have no Liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which BBI could become liable
or
obligated.
(e) Limitation
of Representations and Warranties. Except for the representations
and warranties of BBI expressly set forth in Section 5 above, the Shareholders
have not relied upon any representations and warranties in making its
determination to enter into this Agreement and consummate the matters provided
for herein
(f) Disclosure. The
representations and warranties contained in this Section 6 above do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements and information contained in this
Section 6 above not misleading.
(g) Indemnification.
In the event Shareholders (i) breach or are deemed to have breached any of
the
representations and warranties contained in this Agreement or (ii) fail to
perform or comply with any of the covenants and agreements set forth in this
Agreement, Shareholders shall hold harmless, indemnify and defend BBI, and
each
of its directors, officers, shareholders, attorneys, representatives and agents,
from and against any Damages incurred or paid by the acquirer to the extent
such
Damages arise or result from a breach by Shareholders of any such
representations or warranties or a violation of any covenant in this
Agreement.
Covenants
of the Parties.
(a) Joint
Statement. Promptly following the Closing, if requested by the
Shareholders, BBI will cooperate in issuing a joint statement to suppliers,
customers, and such other parties as may be agreed upon by the Shareholders
and
the BBI, advising them of the transactions contemplated hereunder.
(b) Post-Closing
Access and Cooperation. For the period following the Closing,
each Party will provide the other with reasonable access to such documents,
books, records, agreements, contracts, plans and financial data.
(c) No
Disparagement. Each of the Parties hereby agree that it shall
not, directly or indirectly, disparage the name or business of any other Party
hereto or any of its current and former predecessors, successors, assigns,
parent companies, subsidiaries, affiliates, officers, directors, members,
shareholders, managers, employees, family members, and agents.
(d) Saleable
Fuel. The Parties agree and acknowledge that the proceeds from
(a) approximately 9,200 gal. of saleable, not-to-specification fuel that will
be
retained by BBI but stored at the facilities located at 355 South 1550 West
in
Spanish Fork, Utah, for the purpose of being sold and (b) any receivables
collected from ▇▇▇▇▇▇▇▇ Distributing Inc. in connection with fuel rebates
(approximately $4,500) will be applied to current accrued payroll (excluding
any
of the Assumed Liabilities), any immediate insurance obligations, and critical
costs for filing year-end statements.
(e) Further
Assurances. At any time and from time to time after the Closing, the Parties
shall cooperate with each other to execute and deliver any other documents,
instruments of transfer or assignment, files, books and records and do all
further acts and things as may reasonably be required to carry out the intent
of
the Parties under this Agreement. Without limiting the generality of
the foregoing, following the Closing, at the request of the Shareholders, BBI
shall execute and deliver any further documents and instruments and take all
reasonable action as may be necessary or appropriate (i)to vest in DEP all
of
BBI’s title to the Assigned Assets; and (ii) to transfer to DEP all of BBI’s
rights to permits necessary for the operation of the Assigned
Assets.
Mutual
and General Releases.
(a) BBI. BBI
and each of its respective predecessors, successors, affiliates, present and
former subsidiaries, divisions, parents, their respective present and former
officers, employees, agents and shareholders hereby release and forever
discharge the Shareholders and each of their respective past, present or future
subsidiaries, affiliates, shareholders, officers, directors, employees,
insurers, agents, predecessors, successors and assigns (collectively, the
“Shareholders’ Released Parties”) of and from any and all claims,
actions, suits, causes of action, debts, fees, costs, expenses (including
attorneys’ fees), contracts, promises, liens, liabilities, losses, demands,
controversies, agreements, promises, trespasses, and damages in law or in equity
of any nature whatsoever (“Claims”), known or unknown, unless concealed
by acts of fraud, or unforeseen, fixed or contingent, under statute or
otherwise, and whether existing now or in the future, that BBI now has or may
have had, or hereafter claims to have, against the Shareholders’ Released
Parties relating to, resulting from, arising out of (i) Shareholders’
involvement with BBI, or (ii) actions taken by Shareholders on or prior to
the
date hereof; provided, however, that this release shall not apply to the
obligations of Shareholders under this Agreement.
(b) Shareholders. Shareholders
and each of their respective predecessors, successors, affiliates, present
and
former subsidiaries, divisions, parents, their respective present and former
officers, employees, agents and members hereby release and forever discharge
BBI
and its past, present or future subsidiaries, affiliates, shareholders,
officers, directors, employees, insurers, agents, predecessors, successors
and
assigns (collectively “BBI Released Parties”) of and from any and all
Claims, known or unknown, unless concealed by acts of fraud, or unforeseen,
fixed or contingent, under statute or otherwise, and whether existing now or
in
the future, that Shareholders now have or may have had, or hereafter claims
to
have, against BBI Released Parties relating to, resulting from, arising out
of
monies owed to any of the Shareholders on or prior to the date hereof, including
but not limited to all claims arising out of or in connection with any of the
Shareholders’ employment or separation of employment with the BBI, and including
but not limited to: (i) any and all claims for violation of any federal, state
or municipal statute, including but not limited to Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities
Act,
the Fair Labor Standards Act, the Family and Medical Leave Act, the Employee
Retirement Income Security Act, and applicable state laws relating to
discrimination and the payment of wages; (ii) any and all claims for wrongful
discharge of employment; termination in violation of public policy;
discrimination; breach of contract; breach of a covenant of good faith and
fair
dealing; promissory estoppel; negligent or intentional infliction of emotional
distress; negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage; unfair business
practices; defamation; libel; slander; negligence; personal injury; assault;
battery; invasion of privacy; false imprisonment; and conversion; (iii) any
and
all claims arising out of any other laws and regulations relating to employment,
employment discrimination, wages, commissions and employee benefits; (iv) any
and all Claims, known, unknown, or unforeseen, fixed or contingent, under
statute or otherwise, and whether existing now or in the future, that any of
the
Shareholders now have or may have had, or hereafter claims to have, against
BBI
Released Parties relating to, resulting from, arising out of monies owed to
any
of the Shareholders on or prior to the date hereof; or (v) any and all claims
for attorneys’ fees and costs; provided, however, that this release shall not
apply to the obligations of the Shareholders under this Agreement.
Waiver
of Unknown Claims. Each of the Parties understands that it is
possible that an unknown injury, damage, diminution or loss, action or suit,
lien, theory of recovery, lawsuit, claim or cause of action may exist, or may
arise in the future, which if known by the Parties would have materially
affected their decision to settle on the terms set forth in this
Agreement. Each of the Parties agrees that the exchange set forth
herein is fair consideration for settling the claims and entering into this
Agreement, and that this Agreement was entered into in good faith.
No
Admission of Liability. This Agreement does not constitute any
admission by any Party (and shall not be admissible in a proceeding as evidence)
that any action such Party, its agents or employees took with respect to the
other was wrongful, unlawful or in violation of any local, state or Federal
act,
statute, regulation or constitution, public policy, or contact, or susceptible
of inflicting any damages or injury whatsoever on the other Party, and each
Party hereto specifically denies any such wrongdoing or violation. It
is further agreed that this Agreement is entered into in part for compromise
and
in an effort to resolve fully all matters and issues related to or arising
out
of liabilities of the Parties.
Confidentiality. Whether
or not the Parties consummate the transactions contemplated in this Agreement,
neither BBI nor the Shareholders (i) shall not use any of the information
disclosed to the Shareholders concerning BBI, or BBI concerning the
Shareholders, as the case may be, or the Acquired Assets for any reason other
than those reasonably contemplated by this Agreement; (ii) shall destroy or
return to BBI or the Shareholders, as the case may be, as much of such written
information as BBI or the Shareholders, as the case may be, may reasonably
request, and (iii) shall maintain in confidence all such information, whether
obtained in writing, orally or otherwise, except for information generally
known
to the public other than through BBI’s or the Shareholders’ breach of the
covenants of this Section.
Miscellaneous.
(a) No
Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(b) Succession
and Assignment. This Agreement shall be binding upon and inure to
the benefit of the Parties named herein and their respective successors and
permitted assigns. No Party may assign either this Agreement or any
of its rights, interests or obligation hereunder without the prior written
approval of the other Party.
(c) Notices. All
notices, requests, demands, claims and other communications hereunder will
be in
writing. Any notice, request, demand, claim or other communications
hereunder shall be deemed duly given if (and then two business day after) it
is
sent by registered or certified mail, return receipt requested, postage prepaid
and addressed to the intended recipient as set forth below:
|
If
to Better Biodiesel:
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_______________________
_______________________
_______________________
_______________________
_______________________
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With
a copy to:
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_______________________
_______________________
_______________________
_______________________
_______________________
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|
If
to the Shareholders:
|
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
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Any
Party
may send any notice, request, demand, claim or other communication hereunder
to
the intended recipient at the address set forth above using personal delivery,
expedited courier, messenger service, but no such notice, request, demand,
claim
or other communication shall be deemed to have been duly given unless and until
it actually is received by the intended recipient. Any Party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other Party notice
in
the manner herein set forth.
(d) Governing
Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Utah without giving effect
to
any choice or conflict of law provision or rule (whether of the State of
Washington or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Utah.
(e) Amendments
and Waivers. No amendments of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the
Shareholders and BBI. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or affect
in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(f) Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability
of
the remaining terms and provisions hereof or the validity or enforceability
of
the offending term or provision in any other situation or in any other
jurisdiction.
(g) Expenses. Each
of the Shareholders and BBI will bear its own costs and expenses (including
legal fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby.
(h) Headings. The
section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.
(i) Construction. The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions
of
this Agreement. Any reference to any federal, state, local or foreign
statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The
word “including” shall mean including without limitation. The Parties
intend that each representation, warranty and covenant contained herein shall
have independent significance. If any Party has breached any
representation, warranty or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to
the
same subject matter (regardless of the relative levels of specificity) which
the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty or
covenant.
(j) Incorporation
of Exhibits. The Exhibits identified in this Agreement, as well
as Exhibit F of the Consent Resolutions, setting forth the value of the Assigned
Assets, Assumed Liabilites, and the BBI Stock, are incorporated herein by
reference and made a part hereof.
(k) Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original but all of which together will constitute one and the same
instrument. This Agreement may be executed by facsimile.
(l) Entire
Agreement. This Agreement and the Exhibits hereto (including the
documents referred to herein) constitutes the entire agreement between the
Parties and supersedes any prior understandings, agreements, or representations
by or between the Parties, written or oral, to the extent they related in any
way to the subject matter hereof.
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date
first above written:
|
By: /s/
▇▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇
Its: Director
|
DOMESTIC
ENERGY PARTNERS, LLC
By: /s./
▇▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇, on behalf of Better Biodiesel, as Sole Member and Manager of
Domestic Energy Partners, LLC
|
|
▇▇▇▇
CRAFTS
By: /s/
▇▇▇▇
Crafts
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
By: /s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇
By: /s/
▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
▇▇▇
CRAFTS
By:__/s/
▇▇▇ Crafts____________
CULINARY
CRAFTS, LLC
By: /s/
▇▇▇
Crafts
Name: ▇▇▇
Crafts
Its: Co-Owner
By: /s/
▇▇▇▇
Crafts
Name: ▇▇▇▇
Crafts
Its: Co-Owner
|
Schedule
3(c)
|
Shareholder
|
Shares
of BBI
|
Ownership
Percentage of DEP
|
|
▇▇▇
Crafts
|
5,250,000
|
33.33%
|
|
▇▇▇▇
Crafts
|
-0-
|
0%
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
1,494,500
|
9.50%
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
5,250,000
|
33.33%
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
3,755,500
|
23.84%
|
|
Culinary
Crafts, LLC
|
-0-
|
0%
|
|
Total
|
15,750,000
|
100%
|
EXHIBIT
A
Assets
of
Separated Business
(1) One
hundred percent (100%) of the DEP Membership interest, and, as wholly owned
subsidiaries of Domestic Energy Partners, LLC, one hundred percent (100%) of
the
membership interests in Domestic Energy Leasing, LLC., a Utah limited liability
company, and wholly owned subsidiary of Domestic Energy, and one hundred percent
(100%) of the membership interests in Domestic Energy Licensing, LLC., a Utah
limited liability company and wholly owned subsidiary of Domestic
Energy.
(2) The
raw material inventory of approximately 6,300 gallons of beef
tallow.
(3) The
raw material inventory of approximately 5,300 gallons of methanol.
(4) The
biodiesel fuel in process of approximately 1,900 gallons requiring additional
methanol recovery.
(5) The
payroll cash advances of $6,000 representing $2,000 for each of the
following: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇.
(6) The
patent application identified in United States Patent Application Serial Numbers
60/736,674 and 11/559,779.
(7) All
of the intellectual property for the production of biodiesel fuel held by the
Company, including assignments and related agreements from ▇▇▇ Crafts, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇; as well as drawings, renderings and any other images and files, and
all
developments and improvements thereon.
(8) All
of the production assets located at 355 South 1550 West in Spanish Fork, Utah
consisting of storage tanks, processing equipment (including the container),
laboratory equipment and miscellaneous production equipment.
(9) The
Cessna twin engine airplane.
(10) The
property lease by and between Domestic Energy Partners, LLC and Lew and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇.
(11) All
of the furniture, office equipment and leasehold improvements located at 355
South 1550 West in Spanish Fork, Utah.
(12) The
$5,000 deposit associated with lease of property located at 355 South 1550
West
in Spanish Fork, Utah and $500 in miscellaneous deposits.
(13) DEP’s
checking account held at the Central Bank of Utah with an account balance not
to
exceed $50.00.
EXHIBIT
B
Assumed
Liabilities
(1)
100%
of accrued salary through October 31, 2007 owed to ▇▇▇ Crafts, plus interest
accrued thereon, due and owing to Mr. Crafts for services rendered to the
Company in the amount of One hundred thousand dollars
($100,000.00);
(2)
That
promissory note payable to ▇▇▇ Crafts in the amount of Seventy-five thousand
dollars ($75,000), plus Four thousand, two hundred eighty-four
dollars ($4,284) accrued through October 31, 2007, plus all
subsequent interest accruing thereon;
(3) 100%
of accrued salary through October 31, 2007 owed to ▇▇▇▇ ▇▇▇▇▇▇▇▇, plus interest
accrued thereon, due and owing to Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇ for services rendered to
the
Company in the amount of Thirty-two thousand, five hundred dollars
($32,500.00);
(4) 100%
of accrued salary through October 31, 2007 owed to ▇▇▇▇ ▇▇▇▇▇▇▇▇, plus interest
accrued thereon, due and owing to ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ for services rendered to
the
Company in the amount of Thirty-two thousand, five hundred dollars
($32,500.00);
(5) 100%
of accrued salary through October 31, 2007 owed to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, plus interest
accrued thereon, due and owing to Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇ for services rendered to
the
Company in the amount of Seventeen thousand, five hundred dollars
($17,500.00).
(6) $60,000
unpaid compensation to ▇▇▇▇ ▇▇▇▇▇.
Total
Value: [approx
$321,784.00]
EXHIBIT
C
ASSIGNED
CONTRACTS
(1) Commercial
lease
agreement for the premises located at 355 South 1550 West in Spanish Fork,
Utah.
(2) Employee
leasing
agreement with A-Plus Benefits.