EXHIBIT 10.30
Pages containing material for which confidential treatment has been requested
are stamped "Material omitted pursuant to a request for confidential
treatment and filed separately with the Commission." The appropriate
sections have been marked at the appropriate places with a star [*].
TRANSFER OF ASSETS AND ASSIGNMENT OF CONTRACTS
BETWEEN
NOVUS INTERNATIONAL, INC.
AND
XXXXXX CORPORATION
This TRANSFER OF ASSETS AND ASSIGNMENT OF CONTRACTS ("Agreement") is made
and entered into as of the 11th day of November 1998, by and between NOVUS
INTERNATIONAL, INC., a Delaware corporation with its principal place of
business at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000 ("Novus"),
and XXXXXX CORPORATION, a Delaware corporation with its principal place of
business at 0000 000xx Xxxxxx XX, Xxxxxxx, Xxxxxxxxxx 00000 ("Xxxxxx").
RECITALS
A. Novus and Xxxxxx have entered into an Agreement, made effective
as of May 21, 1997, as supplemented by a letter agreement dated May 20, 1997
and amended by a letter agreement dated August 3, 1998 (the "1997
Agreement"), with respect to commercialization of certain acidified sodium
chlorite compositions to be used as an anti-microbial treatment marketed as
the SANOVA-Registered Trademark- Food Quality System (the "SANOVA System") in
chicken processing plants.
B. Pursuant to the 1997 Agreement, Novus has given notice of
termination of the 1997 Agreement effective November 30, 1998. In
anticipation of such termination, Novus has agreed to sell certain assets and
assign certain customer contracts to Xxxxxx, and Xxxxxx has agreed to
purchase, or shall have an option right to purchase, such assets and assume
such contracts, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, Novus and Xxxxxx agree as follows:
1. TRANSFER OF ASSETS
1.1 Effective as of the close of business (5:00 p.m. St. Louis
time) on November 30, 1998 (the "Effective Time"):
(i) Subject to the terms of this Agreement, Novus hereby
sells and assigns to Xxxxxx and Xxxxxx hereby purchases all of Novus' right,
title and interest in and to the equipment and other assets identified in
Exhibit A (the "Assets").
(ii) The purchase price for the Assets is as set forth in
Exhibit A, provided that in the event any Asset shall be materially damaged
or destroyed prior to the Effective Time and Novus has not repaired or
replaced the Asset (which Novus may use Spare Parts or
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
Option Assets or other materials to effectuate), then Xxxxxx may elect to
either (a) exclude such Asset from the Assets being purchased under this
Agreement or (b) purchase such Asset at a price to be equitably adjusted
taking into account the damage thereto. Subject to Article 6, the purchase
price for the Assets shall be paid by Xxxxxx to Novus pursuant to the
purchase terms set forth in Exhibit A, provided that, at Alcide's election,
the full purchase price for any Asset may be paid by application to, and
taking a current credit against, the [*] due under Section 5.1(i). At the
Effective Time, Novus will provide Xxxxxx with a Xxxx of Sale for the Assets
in the form of Exhibit B hereto, and Xxxxxx will execute appropriate
financing statements covering all of the Assets providing a security interest
therein in connection with any amounts due under this Agreement which have
not been paid in full.
(iii) Xxxxxx shall take custody of the Assets and be
responsible for all costs and risk of loss as of the Effective Time, prior to
which Novus shall be responsible for all risk of loss and costs shall
continue to be governed by the 1997 Agreement. Any personal property taxes
or other taxes or charges will be prorated as of such date (based on a year
of 365 days), and Novus and Xxxxxx will each pay to the other, within 10
calendar days of receipt of a written request accompanied by copies of
appropriate tax invoices or similar documentation, such amounts as are
necessary to accomplish such proration.
1.2 During the period ending at the close of business on November
30, 1999:
(i) Xxxxxx shall have the right to purchase from time to
time other parts and equipment that Novus currently owns in connection with
the 1997 Agreement identified in Exhibit C hereto (the "Option Assets").
(ii) To exercise such right Xxxxxx must provide written
notice(s) to Novus no later than the close of business on November 30, 1999,
specifying the Option Assets to be purchased. The Option Assets must be
purchased in "unit" increments, as described in Exhibit C.
(iii) The purchase price for the Option Assets will be as set
forth in Exhibit C, and shall be paid to Novus with the written notice(s)
referred to in Section 1.2(ii). Promptly after such payment, Novus shall
promptly provide Xxxxxx with a Xxxx of Sale similar in form to Exhibit B.
(iv) Xxxxxx shall take custody of, arrange for the storage
of, or remove any Option Assets purchased within 10 days after the date of
the written notice(s) referred to in Section 1.2(ii), and Xxxxxx shall be
liable for all storage and/or warehouse costs incurred by Novus after that
period, and for any packing, shipping, transportation or similar costs or
charges. Any personal property taxes or other taxes or charges will be
prorated as of the earlier of the date on which Xxxxxx takes custody or is
required to take custody (based on a
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
year of 365 days), and Novus and Xxxxxx will each pay to the other, within 10
calendar days of receipt of a written request accompanied by copies of
appropriate tax invoices or similar documentation, such amounts as are
necessary to accomplish such proration.
2. ASSIGNMENT OF AGREEMENTS
2.1 Subject to the terms of this Agreement, as of the Effective
Time Novus hereby assigns and transfers to Xxxxxx all of its rights and
obligations under the customer contracts identified on Exhibit D hereto (the
"Assigned Contracts"), to the extent such rights and obligations accrue on or
after the Effective Time.
2.2 Subject to the terms of this Agreement, as of the Effective
Time Xxxxxx hereby accepts the assignment of the Assigned Contracts and
agrees that it and its successors will assume and perform all obligations of
Novus thereunder in accordance with the terms of the Assigned Contracts, to
the extent such obligations accrue on or after the Effective Time.
2.3 Novus will use commercially reasonable efforts to obtain
consent to the Assignment of the SANOVA System Agreement with [*] as soon as
possible. If such consent has not been obtained by the Effective Time:
(i) Such SANOVA System Agreement shall not be included
within the Assigned Contracts under this Agreement, shall be deemed deleted
from Exhibit D and shall not be assigned to Xxxxxx.
(ii) The Assets identified in Item II(iii) of Exhibit A shall
be treated as Option Assets rather than Assets, with the purchase thereof
(including without limitation payment of the purchase price therefore)
governed by the provisions of Section 1.2 rather than by Section 1.1 at the
total purchase price set forth in Item II(iii) of Exhibit A.
(iii) All references to the [*] shall be deemed deleted from
this Agreement.
2.4 Notwithstanding the provisions of Sections 2.1 and 2.2, and
except to the extent covered by Section 6 of the 1997 Agreement, Xxxxxx shall
not assume, succeed to and be obligated to perform, and Novus shall be
responsible for, any liability or obligation, arising out of any or all of
the following:
(i) any breach by Novus of the Assigned Contracts or failure
by Novus to discharge or perform any liability or obligation, in each such
case to the extent arising prior to the Effective Time, but not including any
breach arising out of the assignment; and
(ii) any claim, demand, cause of action, suit, proceeding,
arbitration or investigation resulting from any act or omission of Novus
prior to the Effective Time.
2.5 Xxxxxx will seek to replace all Assigned Contracts with
agreements directly between Xxxxxx and the customers on commercially
reasonable terms as soon as possible, which agreements would terminate the
replaced Assigned Contracts. Xxxxxx will not extend or renew any Assigned
Contract unless Novus receives from the customer a written full and
unconditional release releasing Novus from any and all obligations and
liabilities thereunder.
2.6 Within ten days after the date of this Agreement and prior to
the Effective Time, Xxxx Xxxxxxxx from Xxxxxx and an appropriate
representative from Novus shall together seek to meet with each customer
under an Assigned Contract in order to discuss and arrange for a smooth
transition of service and equipment from Novus to Xxxxxx effective November
30, 1998. In addition, prior to the Effective Time Novus shall reasonably
cooperate and otherwise reasonably assist Xxxxxx in making arrangements for
the customer's transition.
3. REPRESENTATIONS AND WARRANTIES
3.1 Novus and Xxxxxx each represent and warrant to the other that
it has all necessary corporate power and authority to enter into this
Agreement and carry out its obligations hereunder.
3.2 Novus represents and warrants to Xxxxxx that on the date hereof
and, with respect to specific Assets, Option Assets and Assigned Contracts,
the date of transfer of such Assets, Option Assets and Assigned Contracts:
(a) it holds good and marketable title in and to the Assets and the Option
Assets, free and clear of any liens, encumbrances, claims or other
restrictions; (b) the sale, assignment and transfer of the Assets, Option
Assets and Assigned Contracts will not result in any lien, claim or
encumbrance arising out of any action taken by Novus and will not violate,
conflict with, result in a breach of, or constitute a default under any
contract or judgment to which Novus is a party; (c) true and complete copies
of the Assigned Contracts, including all amendments or modifications thereof
through the date of this Agreement, are attached as Exhibit D hereto, and
Novus will not further amend or modify any of the Assigned Contracts prior to
the Effective Time without Alcide's prior written consent (which will not be
unreasonably withheld); and (d) Novus has not received any written notice of
any claim under any of the Assigned Contracts.
3.3 EXCEPT AS SET FORTH IN THIS AGREEMENT, NOVUS MAKES NO OTHER
WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE ASSETS, THE OPTION ASSETS
OR THE ASSIGNED CONTRACTS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ASSETS AND THE
OPTION ASSETS ARE BEING SOLD AND ASSIGNED TO XXXXXX "AS IS, WHERE IS".
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
4. INDEMNIFICATION
It is recognized and agreed that the indemnification provisions of
Section 6 of the 1997 Agreement survive.
5. ADDITIONAL MATTERS RELATED TO 1997 AGREEMENT
5.1 Certain disagreements have arisen between Xxxxxx and Novus with
respect to the 1997 Agreement. In order to settle such disagreements, the
parties have agreed as follows:
(i) Novus shall pay Xxxxxx the [*] minimum payment due for
the period ending August 31, 1998 upon the earlier of (a) satisfaction of all
"COP Conditions" (as defined in Article 6) or (b) November 30, 1999.
(ii) Xxxxxx shall pay to Novus the amount due Novus as
reflected in item II(b) of Exhibit E upon the earlier of (a) satisfaction of
all COP Conditions or (b) November 30, 1999, which amount will be offset
against the payment due pursuant to Section 5.1(i).
(iii) On November 30, 1998, (a) Novus shall pay to Xxxxxx the
sum of all amounts due Xxxxxx as reflected in item I of Exhibit E, which
amounts relate to raw materials, and (b) Xxxxxx will pay Novus for raw
materials pursuant to item III of Exhibit A and its share of cost of goods
sold pursuant to item II(a) of Exhibit E. Such payments shall be subject to
reconciliation pursuant to Section 5.2.
(iv) As soon as practicable following the Effective Time,
Novus will provide to Xxxxxx copies of the reports, dossiers and translations
associated with items II (b) (4) and (5) of Exhibit E. In the event any
applications or dossiers relating to use of the Assets or the performance of
the Assigned Contracts are pending with any governmental authorities as of
the Effective Time, Novus will use commercially reasonable efforts to assign
such applications and dossiers to Xxxxxx, and following the Effective Time
Xxxxxx will assume all responsibility for them.
5.2 As soon as practicable, and in any event within 30 days
following the Effective Time, the parties will determine the actual costs
incurred with respect to items III and IV of Exhibit A and items I(b) and II
(a) on Exhibit E, and Novus will pay to Xxxxxx or Xxxxxx will pay to Novus,
as appropriate, the difference between the estimated amounts noted on Exhibit
A and E and the actual costs incurred.
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
5.3 On November 30, 1998, Novus will deliver to Xxxxxx executed
assignments in the forms attached hereto as Exhibit F, transferring to Xxxxxx
rights to the SANOVA-Registered Trademark- trademark, and Xxxxxx shall pay
Novus the sum of [*]. Such assignment will be pursuant to the following
terms and conditions:
(i) Novus will assign to Xxxxxx all of Novus' ownership
rights in the trademark "SANOVA" for anti-microbial treatment for meats,
poultry, fish, eggs, fruits and vegetables and related products and services
throughout the world, and the goodwill associated with such trademark,
including U.S. Trademark Registration No. 2,182,024 and all foreign trademark
applications and registrations.
(ii) Novus and Xxxxxx will execute any other documents which
the other might reasonably request to effect the above described transfer of
the trademarks in the appropriate Trademark Offices or to otherwise reflect
this Agreement.
(iii) Novus will retain all rights to the "SANOVA" trademark
until the Effective Time, including without limitation for use in the poultry
processing in connection with the performance of the 1997 Agreement.
(iv) Except as provided in this Section 5.3, Xxxxxx shall
have no right, title, interest or license to use, and shall discontinue any
use of, any Novus trademarks or servicemarks. This includes and covers any
use of NOVUS-Registered Trademark-, including the stylized "O"-Registered
Trademark-(including as shown in U.S. Trademark Registration Nos. 1,850,984
and 1,820,399), AIMS-Registered Trademark-, PROVUS-TM-, or "NOVA" or any
variation or derivative thereof (including without limitation the use of
"NOVA" as a prefix or suffix), or any term, design or symbol confusingly
similar thereto. Novus shall have no right, title, interest or license to
use, and shall discontinue any use of, any Xxxxxx trademarks or servicemarks,
or any term, design or symbol confusingly similar thereto. This includes and
covers any use of the "SANOVA" trademark following the Effective Time.
5.4 It is recognized and agreed that, contemporaneously with this
Agreement, the parties are entering into a License Agreement and a
SANOVA-Registered Trademark- Services Agreement. Further, it is recognized
and agreed that the 1997 Agreement will continue through the Effective Time,
and that except as otherwise provided herein any obligations accrued prior to
the Effective Time and the provisions of Sections 6, 7, 8 and 9 of the 1997
Agreement shall survive. The letter agreement between the parties dated
August 11, 1998 will be terminated and of no further force and effect as of
the Effective Time.
5.5 The letter agreement between the parties dated October 23, 1998
with respect to [*] will remain in full force and effect, except that (a)
costs shall be allocated and paid as provided in the 1997 Agreement, (b) any
assignment of the SANOVA System Agreement
"Material omitted pursuant to a request
for confidential treatment and filed
separately with the Commission."
shall be in accordance with this Section 5.5 and liabilities, in the event of
such assignment, shall be governed by this Agreement and (c) since the
equipment has not been assigned to [*], it will be assigned to Xxxxxx in
connection with the assignment of the SANOVA Systems Agreement, in which case
such equipment shall be deemed to be part of the Assets hereunder. Pursuant
to that letter agreement, in the event the SANOVA System Agreement of May 14,
1998 between Novus and [*] is still in effect as of the Effective Time, such
agreement shall be assigned to Xxxxxx, and shall be deemed to be part of the
Assigned Contracts hereunder. Payments shall be made quarterly to Novus out
of Alcide's gross profit from the equipment (revenue received less cost of
goods and maintenance costs), wherever located, pursuant to Paragraph 6 of
the October 23, 1998 letter agreement.
5.6 Except as expressly otherwise provided herein, Novus and Xxxxxx
each, for themselves and their respective representatives, successors and
assigns, hereby releases the other and its successors and assigns from any
and all claims, liabilities or obligations arising out of or relating to the
1997 Agreement, the prior course of conduct of the parties, or any other
understandings or agreements related thereto, whether any such claim,
liability or obligation is known or unknown as of the date of this Agreement.
This release is expressly intended to, and shall, operate as a bar to any
action at law or equity which either party, its shareholders,
representatives, successors or assigns might have against the other or its
successors and assigns with respect to any such claim, liability or
obligation. The provisions of this Section 5.6 shall not, however, affect
any claim, liability or obligation under this Agreement or any of the
additional agreements expressly contemplated hereby, whether accruing or
related to periods before or after the date hereof.
6. COP CONDITIONS
6.1 The payments provided for herein are subject to satisfaction of
certain conditions relating to United States Department of Agriculture, Food
Safety and Inspection Service ("USDA") approval of continuous on-line
processing ("COP"). As used in this Agreement, such conditions shall be
defined as follows:
(i) The "[*] COP Condition" shall be deemed satisfied if the
USDA continues approval of the protocol for confirming the efficacy of online
reprocessing of poultry carcasses using the SANOVA System and the USDA
approves expansion of testing under the protocol for all four processing
lines for Phase II at the [*] facility in [*].
(ii) The "[*] COP Condition", the "[*] COP Condition", the
"[*]COP Condition" and the [*] COP Condition" shall each be deemed satisfied
upon receipt
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
by Xxxxxx or the customer, directly or through an agent or representative, of
approval by USDA of a protocol (including approval to commence individual
plant testing) for confirming the efficacy of on-line reprocessing of poultry
carcasses using the SANOVA System applicable to the [*] facility at [*], the
[*] facility at [*], the [*] facility at [*], and the [*] facility at [*],
respectively, provided that, with respect to the [*] facility and prior to
such approval, [*] has agreed to the current form of amendment to Appendix D
to its Assigned Contract to cover the [*] facility. In the event the proviso
to the preceding sentence is not satisfied on or before the Effective Time,
(a) the Assets identified in Item I(ii) of Exhibit A shall be treated as
Option Assets rather than Assets, with the purchase thereof (including
without limitation payment of the purchase price therefore) governed by the
provisions of Section 1.2 rather than by Section 1.1 and the payment terms
set forth in Section 1.2(iii), and (b) all references to the [*] COP
Condition shall be deemed deleted from this Agreement.
(iii) The [*] COP Condition, the [*] COP Condition (subject to
the last sentence of Section 6.1(ii)), the [*] COP Condition and the [*] COP
Condition (subject to Section 2.3(iii)) are referred to collectively in this
Agreement as the "COP Conditions."
6.2 Xxxxxx shall use commercially reasonable efforts to accomplish
the satisfaction of each of the COP Conditions as soon as possible. Xxxxxx
represents and warrants that it has filed letters requesting approval to
commence COP testing at the plants located in [*], and will promptly file
such a letter with respect to the plant located in [*].
6.3 In the event any of the Assets are being used (wherever
located) to provide anti-microbial services on or at any time after November
30, 1999 in connection with the commercialization by Xxxxxx of any
anti-microbial treatment, including SANOVA, and Xxxxxx is receiving revenue
in connection therewith, then the COP Condition for the particular facility
at which such Assets were originally located ([*]) shall be deemed to have
been satisfied from and after such date.
7. GENERAL
7.1 Notices. Any notice, report or other document required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been sufficiently given if delivered in person, transmitted by
nationally recognized commercial courier or by facsimile (with receipt
verified) or mailed, postage prepaid, by first class, certified or registered
mail, return receipt requested, addressed as follows:
If to Novus:
Novus International, Inc.
Attention: General Counsel
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
If to Xxxxxx:
Xxxxxx Corporation
Attention: President
0000 000xx Xxxxxx XX
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
or to such other address as may be specified from time to time by either
party in a written notice given in accordance herewith. The parties shall
acknowledge in writing the receipt of any such notice given in person, and
any such notice given by courier, facsimile or mail shall be effective when
received.
7.2 Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other party, which consent may be
granted or denied by the other party in its sole discretion. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns.
7.3 Independent Contractors. It is agreed and understood by the
parties that each of Novus and Xxxxxx, in its performance of its obligations
and responsibilities under this Agreement, is an independent contractor and
that nothing herein contained shall be deemed to create any agency,
employment, joint venture, partnership, representation or fiduciary
relationship between the parties, or any other similar relationship, the
existence of which is hereby expressly denied. Neither party shall have the
authority to, nor shall either party attempt to, create any obligation on
behalf of the other party. The provisions of this Agreement shall not be
construed as authorizing or providing either party any right to exercise any
control or discretion over the operation, activities, officers, employees or
agents of the other party in connection with this Agreement, it being
understood and agreed that the entire control and direction of such
operations, activities, officers, employees or agents shall remain with such
party.
7.4 Disputes; Governing Law and Jurisdiction. The parties agree
insofar as possible to use every reasonable effort to settle any dispute or
disagreement between them relating to this Agreement by amicable means and
not to resort to legal action unless and
until the parties have in good faith attempted to settle such dispute or
disagreement in the foregoing manner. The validity, interpretation and
performance of this Agreement shall be governed and construed in accordance
with the laws of the State of Illinois, U.S.A., not including any of such
state's choice of law rules. Any controversy or claim arising out of, or
relating to, this Agreement, or any breach thereof shall be exclusively
settled by the courts and authorities within the State of Illinois, to whose
exclusive jurisdiction the parties hereby submit. The parties consent and
agree irrevocably to any venue within the geographic limits of Xxxx County,
Illinois, hereby waiving any other venue to which they might be entitled by
virtue of domicile or otherwise.
7.5 Offset. Either party shall have the right to offset under this
Agreement, meaning that either may deduct from amounts to be paid to the
other party, any sums such other party may owe the offsetting party under
this Agreement.
7.6 Complete Agreement. This Agreement constitutes the full
understanding of the parties, a complete allocation of risks between them and
a complete and exclusive statement of the terms and conditions of their
agreement relating to the subject matter hereof.
7.7 Headings. Headings as to the contents of particular provisions
of this Agreement are for convenience only and are in no way to be construed
as part of this Agreement nor as a limitation of the scope of the particular
provisions to which they refer.
7.8 Severability. The provisions of this Agreement shall be
interpreted, if possible, so as to be valid, legal and enforceable. In the
event that any provision of this Agreement conflicts with the law under which
this Agreement is to be construed or is otherwise held to be invalid, illegal
or unenforceable by a court with jurisdiction over the parties to this
Agreement, such provision shall be deemed to be restated to reflect as nearly
as possible the original intentions of the parties in accordance with
applicable law, and the remainder of this Agreement shall remain in full
force and effect.
7.9 Amendments; Waivers. This Agreement may be amended, modified,
or waived only by another writing signed by the authorized representatives of
both parties. The delay or failure of either party to this Agreement to
enforce or insist upon compliance with any of the terms or conditions of this
Agreement or to exercise any remedy provided herein, the waiver of any term
or condition of this Agreement, or the granting of an extension of time for
performance shall not constitute the permanent waiver of any term, condition
or remedy of or under this Agreement, and this Agreement and each of its
provisions shall remain at all times in full force and effect until modified
as provided herein.
7.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which taken
together shall be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto through their respective
authorized representatives have executed this Agreement, effective as of the
day and year first written above.
XXXXXX CORPORATION NOVUS INTERNATIONAL, INC.
By /s/ Xxxx Xxxxxxxx By /s/ X.X. Xxxxxxx
------------------------ -------------------
Name Xxxx Xxxxxxxx Name X.X. Xxxxxxx
------------------------ -------------------
Title Executive Vice President Title Pres./CEO
------------------------ -------------------
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
EXHIBIT A
TRANSFERRED ASSETS AND PURCHASE PRICE
I. Assets associated with [*] facilities:
(i) [*]:
(a) Asset: All equipment installed (including spare parts on
site) related to the SANOVA System, including components to
monitor inventory levels and certain other variables, at the [*]
facility located in [*].
Purchase Price: [*].
(b) Asset: The receivable due Novus from [*] for Xxxxxxx
birdwashers installed at the [*] facility and financed by Novus.
[*].
Purchase Price: Xxxxxx will assume this receivable and pay Novus
the outstanding balance as of the Effective Time, [*].
(c) [*].
(ii) [*]:
(a) Asset: Any and all equipment needed for installation of a
SANOVA System, to the extent available from inventories held by
Novus, at the [*] facility located in [*].
Purchase Price: [*].
II. Assets associated with [*] facilities:
(i) [*]:
Asset: All equipment installed (including spare parts on site)
related to the SANOVA System, including components to monitor
inventory levels and certain other variables, at the [*] facility
located at [*].
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
Purchase Price: [*].
(ii) [*]
Asset: All equipment installed (including spare parts on site)
related to the SANOVA System, including components to monitor
inventory levels and certain other variables, at the [*] facility
located at [*].
Purchase Price: [*].
(iii) [*]
Asset: All equipment installed (including spare parts on site)
related to the SANOVA System, including components to monitor
inventory levels and certain other variables, at the [*] facility
located at [*].
Purchase Price: [*].
III. Raw Materials at Customers:
Asset: All raw materials held at customers, including without
limitation SANOVA base and activator, as of the Effective Time.
Purchase Price: [*]. Xxxxxx will pay Novus this amount [*].
This amount will be reconciled according to Section 5.2 of this
Agreement.
IV. Spare Parts:
Asset: All inventory of spare parts for installed SANOVA
systems. A complete inventory list will be provided 10 days
before the Effective Time.
Purchase Price: [*], such amount to be paid on [*] and to be
reconciled according to Section 5.2 of this Agreement. [*].
EXHIBIT B-1
XXXX OF SALE AND ASSIGNMENT
OF EQUIPMENT AND RAW MATERIALS
KNOW ALL MEN BY THESE PRESENTS, that Novus International, Inc., a
Delaware corporation ("Novus"), for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by it, does hereby
sell, transfer, convey, assign and deliver to Xxxxxx Corporation, a Delaware
corporation ("Xxxxxx"), all of its right, title and interest in and to the
equipment and other assets identified in Exhibit X, all of which are being
transferred pursuant to the Transfer of Assets and Assignment of Contracts
between Novus and Xxxxxx dated ______________, 1998 (the "Agreement"), which
is incorporated herein by reference.
This Xxxx of Sale and Assignment shall be binding upon and inure to
the benefit of Xxxxxx and Novus and their respective successors and assigns.
NOVUS INTERNATIONAL, INC.
By _____________________________
Name _____________________________
Title _____________________________
ACCEPTED BY:
XXXXXX CORPORATION
By _____________________________
Name _____________________________
Title _____________________________
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
EXHIBIT X
TRANSFERRED EQUIPMENT AND RAW MATERIALS
I. Assets associated with [*] facilities:
(i) [*]:
(a) All equipment installed (including spare parts on site)
related to the SANOVA System, including components to monitor
inventory levels and certain other variables, at the [*] facility
located in [*].
(b) The receivable due Novus from [*] for Xxxxxxx birdwashers
installed at the [*] facility and financed by Novus.
(ii) [*]:
Any and all equipment needed for installation of a SANOVA System,
to the extent available from inventories held by Novus, at the
[*] facility located in [*].
II. Assets associated with [*]:
(i) [*]:
All equipment installed (including spare parts on site) related
to the SANOVA System, including components to monitor inventory
levels and certain other variables, at the [*] facility located
at [*].
(ii) [*]
All equipment installed (including spare parts on site) related
to the SANOVA System, including components to monitor inventory
levels and certain other variables, at the [*] facility located
at [*].
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
(iii) [*]
All equipment installed (including spare parts on site) related
to the SANOVA System, including components to monitor inventory
levels and certain other variables, at the [*] facility located
at [*].
III. Raw Materials at Above Listed Locations:
All raw materials held at the locations listed above, including
without limitation SANOVA base and activator, as of the Effective
Time.
EXHIBIT B-2
XXXX OF SALE AND ASSIGNMENT
OF SPARE PARTS
KNOW ALL MEN BY THESE PRESENTS, that Novus International, Inc., a
Delaware corporation ("Novus"), for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by it, does hereby
sell, transfer, convey, assign and deliver to Xxxxxx Corporation, a Delaware
corporation ("Xxxxxx"), all of its right, title and interest in and to the
assets identified in Exhibit Y, all of which are being transferred pursuant
to the Transfer of Assets and Assignment of Contracts between Novus and
Xxxxxx dated ______________, 1998 (the "Agreement"), which is incorporated
herein by reference.
This Xxxx of Sale and Assignment shall be binding upon and inure to
the benefit of Xxxxxx and Novus and their respective successors and assigns.
NOVUS INTERNATIONAL, INC.
By _________________________
Name _________________________
Title _________________________
ACCEPTED BY:
XXXXXX CORPORATION
By _____________________________
Name _____________________________
Title _____________________________
EXHIBIT Y
TRANSFERRED SPARE PARTS
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
EXHIBIT C
OPTION ASSETS
I. Uninstalled Units
(a) [*]
(b) [*]
(c) [*]
II. Skids (including cabinets and associated spare parts) - to be
purchased as "units" at a price of [*] for any of the [*] units used in USDA
trials, and [*] for any of the [*] unused units.
III. Xxxxxxx Skid - purchase price to be [*].
IV. Xxxxxxx Skid and associated Raw Materials - purchase price to be [*].
If customer requests removal, Novus will notify Xxxxxx and if Xxxxxx does not
purchase within 10 days, Novus may remove the equipment and sell or otherwise
dispose of it, as it deems appropriate.
V. Dip Tank: A Dip Tank as described in Novus drawing "D 43 PP SK02" as
submitted to the USDA and subsequently approved May 1, 1997. Purchase Price
to be [*].
PAYMENT TERMS: Payment of the purchase price of any of the above assets will
accompany the written notice of desire to purchase such asset, as set out in
Section 1.2 (ii).
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
EXHIBIT D
ASSIGNED CONTRACTS
SANOVA System Agreements between Novus International, Inc. and the
following customers:
[*]
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission."
EXHIBIT E
SETTLEMENT OF CERTAIN PAYMENTS
I. Amounts due from Novus to Xxxxxx
(a) [*] for raw material costs through August 31, 1998
(b) Estimated raw material purchases, September 1, 1998 through
November 30, 1998 - [*](1)
II. Amounts due from Xxxxxx to Novus
(a) 1/2 of estimate of cost of goods sold, net of revenue, through
November 30, 1998 - [*](1)
(b) The following items, which the parties have agreed to settle for
an aggregate of [*]:
1) 1/2 of [*] expenses
2) 1/2 of insurance premium from September 1, 1998 through
November 30, 1998
3) Cost of the COP trial at [*]
4) Fees for European Consultants for August through October,
1998
5) Cost of Canadian regulatory consultants (Cantox)
6) Settlement of claims for USDA trial costs
____________________________
(1) To be reconciled pursuant to Section 5.2
EXHIBIT F
TRADEMARK ASSIGNMENTS
[FORMS OF ASSIGNMENT WHICH ACCOMPANIED XXXX LETTER OF 10/23/98 TO BE ATTACHED]
"Material omitted pursuant to a
request for confidential
treatment and filed separately
with the Commission.
AMENDMENT TO THE
TRANSFER OF ASSETS AND ASSIGNMENT OF CONTRACTS
AGREEMENT DATED NOVEMBER 11, 1998 BETWEEN NOVUS INTERNATIONAL, INC.
("NOVUS") AND XXXXXX CORPORATION ("XXXXXX")
Section 2.3 of the Transfer of Assets and Assignment of Contracts
Agreement ("TOA Agreement") required Novus to use commercially reasonable
efforts to obtain [*] consent to the assignment of its SANOVA-Registered
Trademark- System Agreement ("SANOVA Agreement") to Xxxxxx. Novus promptly
met with [*] to try and obtain its consent; however, despite Novus' best
commercial efforts, [*] will not consent to assignment of its SANOVA
Agreement until [*]receives COP approval.
Thus, Novus and Xxxxxx desire to amend Section 2.3 of the TOA
Agreement respecting the [*] SANOVA Agreement, referenced on Exhibit D of the
TOA Agreement, and the [*] Assets, identified in Item II (iii) of Exhibit A,
by deleting Section 2.3 and replacing it with a new Section 2.3 as follows:
2.3 As of the Effective Time, Xxxxxx, as Novus' agent, will at its
expense perform and be subject to all of Novus' rights and
obligations under the June 5, 1998 [*] SANOVA System Agreement
("SANOVA Agreement"), and shall fully indemnify and hold Novus
harmless with respect to Alcide's performance thereunder.
(i) At the Effective Time, Novus will transfer the [*] Asset,
identified on Exhibit A, at II (iii), pursuant to the terms
and conditions set forth in Section 1.1.
"Material omitted pursuant to a
request for confidential treatment and
filed separately with the Commission."
(ii) In addition to the terms and conditions set forth in
Exhibit A, at II (iii), the purchase price for the [*]
Asset shall not be payable to Novus until [*] has consented
to the assignment of the SANOVA Agreement to Xxxxxx or an
agreement has been reached between [*] and Xxxxxx for
Xxxxxx to provide SANOVA services.
(iii) If [*] desires to terminate its SANOVA Agreement with
Novus, Novus will permit [*] to do so, and Novus agrees to
notify Xxxxxx of such termination as soon as practicable.
Except as specifically set forth herein, all other terms and
conditions of the TOA Agreement shall continue to apply.
Please evidence Alcide's agreement to the provisions of this Addendum
by executing both originals, then returning one executed original to Novus.
The other original is for your file.
XXXXXX CORPORATION NOVUS INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx
----------------------- -----------------------
Name: Xxxx Xxxxxxxx Xxxx Xxxxxx
-----------------------
Title: Exec. V.P. Vice President
-----------------------
12/1/98 11/30/98
