EXHIBIT 10.1


 


ASSET
PURCHASE AND SALE AGREEMENT


 


BETWEEN


 


MOARK,
LLC, CUTLER AT ABBEVILLE, L.L.C., HI POINT INDUSTRIES, LLC,

L & W EGG PRODUCTS, INC., NORCO RANCH, INC., AND MOARK EGG

CORPORATION,


 


COLLECTIVELY
AS SELLER


 


AND


 


GOLDEN
OVAL EGGS, LLC


 


AND


 


GOECA,
LP


 


AS
BUYER


 


Dated as of May 23, 2006


 


SIGNATURE COPY


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  PAGE

  
	
  ARTICLE 1 DEFINITIONS

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2 SALE AND
  PURCHASE OF PURCHASED ASSETS; ASSUMPTION OF ASSUMED OBLIGATIONS

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Purchased Assets

  	
   

  	
  6

  
	
  2.2

  	
   

  	
  Assignment of Contracts

  	
   

  	
  7

  
	
  2.3

  	
   

  	
  Excluded Assets

  	
   

  	
  8

  
	
  2.4

  	
   

  	
  Assumed Obligations

  	
   

  	
  8

  
	
  2.5

  	
   

  	
  Excluded Obligations

  	
   

  	
  8

  
	
  2.6

  	
   

  	
  Schedule Updates

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3 PURCHASE
  PRICE AND PAYMENT

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Purchase Price

  	
   

  	
  10

  
	
  3.2

  	
   

  	
  Initial Purchase Price

  	
   

  	
  10

  
	
  3.3

  	
   

  	
  Earn-Out Payment

  	
   

  	
  10

  
	
  3.4

  	
   

  	
  Allocation of Initial Purchase
  Price

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4
  REPRESENTATIONS AND WARRANTIES OF THE SELLER

  	
   

  	
  12

  
	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Purchased Assets Sold “As Is”
  Except as Warranted

  	
   

  	
  12

  
	
  4.2

  	
   

  	
  Existence and Good Standing

  	
   

  	
  12

  
	
  4.3

  	
   

  	
  Due Authorization

  	
   

  	
  13

  
	
  4.4

  	
   

  	
  Absence of Conflicts

  	
   

  	
  13

  
	
  4.5

  	
   

  	
  Absence of Changes or Events

  	
   

  	
  13

  
	
  4.6

  	
   

  	
  Business Financial Statements

  	
   

  	
  13

  
	
  4.7

  	
   

  	
  Title to Assets

  	
   

  	
  14

  
	
  4.8

  	
   

  	
  Compliance with Laws; Permits

  	
   

  	
  14

  
	
  4.9

  	
   

  	
  Taxes

  	
   

  	
  14

  
	
  4.10

  	
   

  	
  Litigation

  	
   

  	
  15

  
	
  4.11

  	
   

  	
  Inventory

  	
   

  	
  15

  
	
  4.12

  	
   

  	
  Contracts

  	
   

  	
  15

  
	
  4.13

  	
   

  	
  Employee Matters

  	
   

  	
  15

  
	
  4.14

  	
   

  	
  Environmental Matters

  	
   

  	
  15

  
	
  4.15

  	
   

  	
  Labor Matters

  	
   

  	
  15

  
	
  4.16

  	
   

  	
  Major Customers; Major Suppliers

  	
   

  	
  16

  
	
  4.17

  	
   

  	
  Intellectual Property

  	
   

  	
  16

  
	
  4.18

  	
   

  	
  Books and Records

  	
   

  	
  16

  
	
  4.19

  	
   

  	
  Equipment and Fixed Assets

  	
   

  	
  16

  
	
  4.20

  	
   

  	
  Insurance

  	
   

  	
  16

  
	
  4.21

  	
   

  	
  Misrepresentations and Omissions

  	
   

  	
  16

  
	
  4.22

  	
   

  	
  Purchased Assets Necessary for
  Business

  	
   

  	
  17

  



 


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  ARTICLE 5
  REPRESENTATIONS AND WARRANTIES OF THE BUYER

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Representations

  	
   

  	
  17

  
	
  5.2

  	
   

  	
  Existence and Good Standing

  	
   

  	
  17

  
	
  5.3

  	
   

  	
  Due Authorization

  	
   

  	
  17

  
	
  5.4

  	
   

  	
  Absence of Conflicts

  	
   

  	
  18

  
	
  5.5

  	
   

  	
  Litigation

  	
   

  	
  18

  
	
  5.6

  	
   

  	
  Financial Capability

  	
   

  	
  18

  
	
  5.7

  	
   

  	
  Misrepresentations and Omissions

  	
   

  	
  18

  
	
  5.8

  	
   

  	
  Hired Employees

  	
   

  	
  18

  
	
  5.9

  	
   

  	
  Financial Statements

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6 COVENANTS OF
  THE SELLER

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Covenant to Buyer

  	
   

  	
  19

  
	
  6.2

  	
   

  	
  Conduct of Business

  	
   

  	
  19

  
	
  6.3

  	
   

  	
  Disclosure Schedules; Notice of
  Developments

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7 COVENANTS OF
  THE BUYER AND THE SELLER

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Access to Information, Inspections

  	
   

  	
  20

  
	
  7.2

  	
   

  	
  Title Evidence, Closing Fees and
  Proration of Utilities

  	
   

  	
  20

  
	
  7.3

  	
   

  	
  Motor Vehicles

  	
   

  	
  21

  
	
  7.4

  	
   

  	
  Tax Matters

  	
   

  	
  21

  
	
  7.5

  	
   

  	
  Confidentiality

  	
   

  	
  22

  
	
  7.6

  	
   

  	
  Payments Received

  	
   

  	
  22

  
	
  7.7

  	
   

  	
  Satisfaction of Conditions

  	
   

  	
  22

  
	
  7.8

  	
   

  	
  Accounts Receivable

  	
   

  	
  23

  
	
  7.9

  	
   

  	
  Ancillary Agreements

  	
   

  	
  23

  
	
  7.10

  	
   

  	
  HSR Act

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8 CONDITIONS
  PRECEDENT TO OBLIGATIONS OF THE BUYER

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Conditions Precedent

  	
   

  	
  24

  
	
  8.2

  	
   

  	
  Accuracy of Representations and
  Warranties

  	
   

  	
  24

  
	
  8.3

  	
   

  	
  Compliance with Agreements and
  Covenants

  	
   

  	
  24

  
	
  8.4

  	
   

  	
  No Injunctions

  	
   

  	
  24

  
	
  8.5

  	
   

  	
  Intentionally Deleted

  	
   

  	
  24

  
	
  8.6

  	
   

  	
  No Material Adverse Effect

  	
   

  	
  24

  
	
  8.7

  	
   

  	
  Deliveries

  	
   

  	
  24

  
	
  8.8

  	
   

  	
  HSR Act

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9 CONDITIONS
  PRECEDENT TO OBLIGATIONS OF THE SELLER

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Conditions Precedent

  	
   

  	
  24

  
	
  9.2

  	
   

  	
  Accuracy of Representations and
  Warranties

  	
   

  	
  24

  
	
  9.3

  	
   

  	
  Compliance with Agreements and
  Covenants

  	
   

  	
  25

  
	
  9.4

  	
   

  	
  No Injunctions

  	
   

  	
  25

  



 


ii

















 


	
  9.5

  	
   

  	
  Deliveries

  	
   

  	
  25

  
	
  9.6

  	
   

  	
  HSR Act

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10 EMPLOYEES
  AND BENEFIT PLANS

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
   

  	
  Offer of Employment

  	
   

  	
  25

  
	
  10.2

  	
   

  	
  Recognition

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11 CLOSING

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.1

  	
   

  	
  Closing

  	
   

  	
  26

  
	
  11.2

  	
   

  	
  Deliveries by the Seller

  	
   

  	
  26

  
	
  11.3

  	
   

  	
  Deliveries by the Buyer

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12 TERMINATION

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.1

  	
   

  	
  Termination

  	
   

  	
  27

  
	
  12.2

  	
   

  	
  Effect of Termination

  	
   

  	
  28

  
	
  12.3

  	
   

  	
  Remedy Upon Breach

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13
  INDEMNIFICATION

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.1

  	
   

  	
  Excluded Assets and Excluded
  Obligations

  	
   

  	
  28

  
	
  13.2

  	
   

  	
  Purchased Assets and Assumed
  Obligations

  	
   

  	
  28

  
	
  13.3

  	
   

  	
  Breach of Representations and
  Warranties

  	
   

  	
  29

  
	
  13.4

  	
   

  	
  Procedure

  	
   

  	
  29

  
	
  13.5

  	
   

  	
  Payment

  	
   

  	
  30

  
	
  13.6

  	
   

  	
  Sole Remedy

  	
   

  	
  30

  
	
  13.7

  	
   

  	
  No Third Party Beneficiary Claims

  	
   

  	
  31

  
	
  13.8

  	
   

  	
  Not Applicable to Fraud or
  Ancillary Agreements

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14 MISCELLANEOUS

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.1

  	
   

  	
  Disclosure Schedules

  	
   

  	
  31

  
	
  14.2

  	
   

  	
  Expenses

  	
   

  	
  31

  
	
  14.3

  	
   

  	
  Amendment

  	
   

  	
  31

  
	
  14.4

  	
   

  	
  Interpretation

  	
   

  	
  31

  
	
  14.5

  	
   

  	
  Notices

  	
   

  	
  31

  
	
  14.6

  	
   

  	
  Waivers

  	
   

  	
  32

  
	
  14.7

  	
   

  	
  Successors and Assigns

  	
   

  	
  32

  
	
  14.8

  	
   

  	
  Publicity

  	
   

  	
  33

  
	
  14.9

  	
   

  	
  Further Assurances

  	
   

  	
  33

  
	
  14.10

  	
   

  	
  Severability

  	
   

  	
  33

  
	
  14.11

  	
   

  	
  Entire Understanding

  	
   

  	
  33

  
	
  14.12

  	
   

  	
  Applicable Law; Jurisdiction

  	
   

  	
  33

  
	
  14.13

  	
   

  	
  Counterparts

  	
   

  	
  34

  
	
  14.14

  	
   

  	
  Passage of Title and Risk of Loss

  	
   

  	
  34

  



 


iii

















 


ASSET
PURCHASE AND SALE AGREEMENT

BETWEEN

GOLDEN OVAL EGGS, LLC AND GOECA, LP AS BUYER

AND

MOARK AND AFFILIATES AS SELLER


 


PREAMBLE


 


THIS ASSET PURCHASE AND
SALE AGREEMENT is made as of the 23rd day of May, 2006, by and among
Moark, LLC, a Missouri limited liability company (“Moark”), Cutler at
Abbeville, L.L.C., a Missouri limited liability company (“Cutler”), Hi Point
Industries, LLC, a California limited liability company (“Hi Point”), L &
W Egg Products, Inc., an Ohio corporation (“L&W”), Norco Ranch, Inc.,
a California corporation (“Norco”) and Moark Egg Corporation, a Missouri
corporation (“MEC”) (Moark, Cutler, Hi Point, L&W, Norco and MEC collectively
will be referred to in this Agreement as “Seller”), and Golden Oval Eggs, LLC,
a Delaware limited liability company and GOECA, LP a Delaware limited
partnership jointly, severally, and collectively as “Buyer”. Each of the
Sellers and the Buyer is a “Party” and collectively all of the Sellers and the
Buyer are the “Parties”.


 


RECITALS


 


WHEREAS, Moark is,
directly or indirectly through affiliates, in the business of production,
marketing, sale and distribution of shell eggs, and also is in the separate
business of manufacturing, marketing, selling and distributing liquid egg
products. The liquid egg products operations are owned directly by Moark and
five of its wholly owned subsidiaries; Cutler, Hi Point, L&W, Norco, and
MEC. Cutler, Hi Point, and L&W each are engaged only in the business of
manufacturing, marketing, selling and distributing liquid egg products, and are
not engaged in the production, marketing, sale and distribution of shell eggs. Moark,
Norco, and MEC are each engaged in both shell egg operation and liquid egg
operations.


 


WHEREAS, the Buyer
desires to purchase from the Seller and the Seller desires to sell to the Buyer
substantially all of the assets owned or leased by Seller and used in the
conduct of the business of its liquid egg operations (“Business”) and the Buyer
is willing to assume certain obligations of the Business, all upon the terms
and conditions in this Agreement. Seller is not selling to Buyer, and Buyer is
not buying from Seller, assets associated with Cutler at Philadelphia, LLC, or
any assets other than those used in the Business, and expressly excluding any
assets associated with Seller’s shell egg operations, unless specifically
provided herein.


 


NOW, THEREFORE, in
consideration of the foregoing which are contractual in nature and not mere
recital, and the mutual warranties, representations, covenants and agreements
herein contained, the parties hereby further agree as follows:


 

















 


ARTICLE 1

DEFINITIONS


 


The defined terms in this
Article 1 have the meanings set forth below for purposes of this
Agreement.


 


“Accounts
Receivable” shall mean the unpaid balance at the Effective
Time of all monies due to Seller for sales or products or services of the
Business prior to the Effective Time.


 


“Agreement”
shall mean this Asset Purchase and Sale Agreement, including all exhibits and
schedules attached to this Agreement, which are incorporated as part of
this Agreement, as it may be amended, supplemented or modified from time
to time by mutual agreement or in accordance with terms of this Agreement.


 


“Ancillary
Agreements” shall mean those agreements set forth in Section 7.9.


 


“Assigned
Contracts” has the meaning set forth in Section 2.2.


 


“Assumed
Obligations” has the meaning set forth in Section 2.4.


 


“Audited
Financial Statements” has the meaning set forth in Section 5.9.


 


“Books
and Records” has the meaning set forth in Section 2.1(a)(4).


 


“Business”
means substantially all of the assets owned or leased by Seller and used in the
conduct of business of its liquid egg operations, other than the Excluded
Assets.


 


“Business
Day” shall mean any day of the year other than (1) any
Saturday or Sunday or (2) any other day on which banks located in New
York, New York are closed for business.


 


“Business
Financial Statements” shall mean those financial statements
of the Business for the years 2002, 2003, 2004 and 2005, copies of which have
been provided by Seller to Buyer.


 


“Buyer”
has the meaning set forth in the Preamble of this Agreement.


 


“Cash”
as used in Section 2.3(1) shall mean all cash, certificates of
deposit, bank accounts and other cash equivalents, together with all accrued
but unpaid interest on the certificates, bank accounts and cash equivalents.


 


“Closing”
shall mean the consummation of the transactions contemplated in this Agreement
in accordance with Article 11.


 


“Closing
Date” shall mean the date on which the Closing takes place in
Section 11.1.


 


“COBRA”
shall mean the Consolidated Omnibus Budget Reconciliation Act.


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended, and the temporary and
final regulations promulgated under the Code.


 


2

















 


“Confidentiality
Agreement” has the meaning set forth in Section 7.5.


 


“Contemplated Transactions” means the
transactions contemplated in this Agreement.


 


“Contract”
shall mean any contract, lease, sublease, easement, license, sales order,
purchase order, supply agreement, assignment, or any other agreement,
commitment or understanding whether oral or written, other than Permits.


 


“Contribution
Assets” has the meaning set forth in Section 2.3(3).


 


“Conveyance
Documents” has the meaning set forth in Section 11.2(1).


 


“Earnest
Money Deposit” shall mean an amount equal to one million five
hundred thousand dollars ($1,500,000).


 


“Earn-Out
Payment” has the meaning set forth in Section 3.1(b)(1).


 


“Earn-Out
Payment Computation Date” has the meaning set forth in Section 3.3(b).


 


“Effective
Time” shall mean 12:01 a.m., Central Daylight Time,
on the July1, 2006.


 


“Employee
Plan” shall mean any “employee benefit plan” within the
meaning of Section 3(3) of ERISA, all specified fringe benefits as
defined in Section 6039D of the Code, and all other retirement, savings,
disability, salary continuation, medical, dental, health, life insurance, death
benefit, group insurance, post-retirement insurance, profit-sharing, deferred
compensation, stock option, cash option, educational assistance, bonus,
incentive, vacation pay, severance, retiree welfare plans, or other employee
benefit or fringe benefit plan currently in effect as of the date of this
Agreement with respect to the Employees.


 


“Employees”
shall mean the employees of the Seller principally employed in the Business, a
list of whom has been provided by Seller to Buyer.


 


“Environment”
shall mean soil, land surface, or subsurface strata, surface waters,
groundwater, drinking water supply, stream sediments, ambient air (including
indoor air), plant and animal life and any other environmental medium or
natural resource.


 


“Environmental
Law” shall mean any Law applicable to the Purchased Assets in
respect of the Environment, including without limitation federal, state or
local law (including common law), statute, code, ordinance, rule, regulation or
other requirement relating to the pollution or protection of the Environment,
natural resources, or public or employee health and safety applicable to the
Business or the Purchased Assets, and includes without limitation the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”),
42 U.S.C. § 9601 et seq., the Hazardous Materials Transportation Act, 49
U.S.C. § 1801 et seq., the Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C. § 6901 et seq., the Clean Water Act, 33 U.S.C. § 1251 et
seq., the Clean Air Act, 33 U.S.C. § 2601 et seq., the Toxic Substances
Control Act, 15 U.S.C. § 2601 et seq., the Federal Insecticide, Fungicide,
and Rodenticide Act, 7 U.S.C. § 136 et seq., the Oil Pollution Act of
1990, 33 U.S.C. § 2701 et seq. and the Occupational Safety and Health Act,
29 U.S.C. § 651 et seq., as those laws have been amended


 


3

















 


or supplemented,
and the regulations promulgated pursuant to those laws, and all analogous state
or local statutes.


 


“Equipment
and Fixed Assets” has the meaning set forth in Section 2.1(a)(1).


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended.


 


“Excluded
Assets” has the meaning set forth in Section 2.3.


 


“Excluded
Obligations” has the meaning set forth in Section 2.5.


 


“Governmental
Authority” shall mean the government of the United States, or
any other foreign country or any state, provincial or political subdivision of
those entities and any entity, body or authority exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.


 


“Hazardous
Material” shall mean any
waste, pollutant, contaminant, hazardous or toxic substance or waste, special
waste, or any constituent of any hazardous or toxic substance or waste which is
regulated by any Environmental Law due to its properties of being toxic,
hazardous, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, or mutagenic, including, without limitation, petroleum and
petroleum products or byproducts, asbestos, asbestos-containing materials, or
presumed asbestos-containing materials, urea formaldehyde and polychlorinated
biphenyls.


 


“Hired
Employees” has the meaning set forth in Section 10.1.


 


“Identified
Employees” has the meaning set forth in Section 10.1.


 


“Initial
Purchase Price” has the meaning set forth in Section 3.2.


 


“Initial
Purchase Price Allocation” has the meaning set forth in Section 3.4.


 


“Indemnification
Basket” has the meaning set forth in Section 13.3(d).


 


“Indemnification
Cap” has the meaning set forth in Section 13.3(d).


 


“Interim
Financial Statements” has the meaning set forth in Section 5.9.


 


“Knowledge”
when used with respect to the Seller, shall mean the actual knowledge of any of
the Persons set forth on Schedule 1.1.


 


“Law”
shall mean any law, statute, code, regulation, ordinance, or rule enacted
or promulgated by any Governmental Authority.


 


“Leased
Real Property” shall mean the real property and interests in
real property leased by the Seller listed on Schedule 2.2(1).


 


“Litigation”
has the meaning set forth in Section 4.10.


 


4

















 


“Material
Adverse Effect” shall mean any event or circumstance that has
a material and adverse effect on the Purchased Assets or the Business, taken as
a whole, other than events or circumstances generally applicable to the egg
industry or changes in general economic conditions.


 


“Material
Assigned Contracts” has the meaning set forth in Section 4.12.


 


“Owned
Real Property” shall mean the real property owned in fee by
the Seller listed on Schedule 2.1(3).


 


“Party” has the meaning given in the
Preamble.


 


“Permits”
shall mean permits, tariffs, authorizations, licenses, certificates, variances,
interim permits, approvals, franchises and rights under any Law or otherwise
issued or required by any Governmental Authority and any applications for the
foregoing which are currently used by the Seller to engage in the Business as
currently conducted.


 


“Permitted
Encumbrance” shall mean any encumbrance related to the Owned
Real Property or Leased Real Property that is disclosed or otherwise reflected
in the Title Commitment or the survey(s) of the Owned Real Property or Leased
Real Property prepared by Buyer according to Section 7.2, and that is
accepted or waived by Buyer, all according to Section 7.2.


 


“Personal
Property Leases” has the meaning set forth in Section 2.2(2).


 


“Post-Transfer
Period” has the meaning set forth in Section 7.4(a).


 


“Pre-Transfer
Period” has the meaning set forth in Section 7.4(a).


 


“Property
Taxes” has the meaning set forth in Section 7.4(a).


 


“Purchased
Assets” has the meaning set forth in Section 2.2.


 


“Real
Property” shall mean the Owned Real Property and the Leased
Real Property.


 


“Real
Property Leases” has the meaning set forth in Section 2.2(1).


 


“Release”
shall mean, with respect to the Purchased Assets, any release, spill, emission,
leaking, migration or leaching into the Environment.


 


“Seller”
has the meaning set forth in the Preamble to this Agreement.


 


“Tax”
(and, with correlative meanings, “Taxes” and “Taxable”) shall mean taxes,
charges, fees, duties (including customs duties), levies or other assessments,
including income, gross receipts, net proceeds, ad valorem, turnover, real and
personal property (tangible and intangible), sales, use, franchise, excise,
value added, alternative, add-on minimum, stamp, leasing, lease, user,
transfer, fuel, excess profits, occupational, interest equalization, windfall
profits, license, payroll, environmental, capital stock, disability, severance,
employee’s income


 


5

















 


withholding, other
withholding, unemployment and Social Security taxes, which are imposed by any
Governmental Authority, and the term “Tax” shall include any interest,
penalties, fines or additions to Tax attributable thereto or associated
therewith, and shall include any transferee or successor liability in respect
of Taxes (whether by contract or otherwise).


 


“Tax
Return” shall mean any report, return, statement, notice,
form, declaration, claim for refund or other document or information filed,
submitted to, or required to be supplied to a Governmental Authority in
connection with the determination, assessment, collection or payment of any
Tax, including any schedule or attachment to or amendment of the Tax
Return.


 


“Title
Commitment” has the meaning set forth in Section 7.2(a).


 


“Title
Evidence” has the meaning set forth in Section 7.2(b).


 


ARTICLE 2

SALE AND PURCHASE OF PURCHASED ASSETS;

ASSUMPTION OF ASSUMED OBLIGATIONS


 


2.1                               Purchased Assets.


 


(a)                                  Sale and Purchase. At the Effective Time,
the Seller shall sell, assign, convey, transfer and deliver to the Buyer, and
the Buyer shall purchase, acquire and take assignment and delivery of all of
the right, title and interest in and to the assets described in clauses (1) to
(8), other than the Excluded Assets, free and clear of all encumbrances other
than the Permitted Encumbrances:


 


(1)                                  Equipment and Fixed Assets. The tangible personal property,
including the buildings, structures, improvements, facilities, fixtures,
machinery, equipment, fixed assets, furniture, tools, automobiles, trucks,
loaders and other vehicles, maintenance equipment and materials and other
tangible personal property and any replacements of tangible personal property
acquired prior to the Effective Time set forth on Schedule 2.1(1) (collectively,
the “Equipment and Fixed Assets”);


 


(2)                                  Inventory. All supplies, materials, work-in-progress,
semi-finished goods, finished goods, components, spare parts, and packaging
materials described in Schedule 2.1(2) (collectively, the “Inventory”);


 


(3)                                  Owned Real Property. The Owned Real Property described in Schedule 2.1(3) together
with all appurtenant rights and easements to the Owned Real Property and all
buildings, structures, improvements, plants, facilities, and fixtures located
on the Owned Real Property;


 


(4)                                  Information and Records. To the extent legally transferable,
all books and records used, or intended to be used, in the operation of the
Business or relating to the Identified Employees (“Books and Records”) that are
in the Seller’s care, custody or control, including, without limitation,
accounting records, employee records, customer lists, vendor lists, and copies
of all written Contracts and Permits, provided that books and records used in
the shell egg business shall be excluded or the shell egg information


 


6

















 


excised if there is information relating to
the Business or the Identified Employees, and only copies of state and federal
tax returns shall be transferred;


 


(5)                                  Certain Current Assets. The prepaid expenses, credits, and
deposits related to the Business and described in Schedule 2.1 (5) (the
“Current Assets”);


 


(6)                                  Permits. All Permits and applications for Permits that are
legally capable of being transferred and which are utilized by Seller to own,
lease and/or operate the Purchased Assets or to conduct the Business as
presently operated and conducted. Buyer shall pay the transfer fees, if any,
that are required to transfer any Permit (to the extent it is transferable) to
Buyer;


 


(7)                                  Intellectual Property. The patents and any patent applications, the trademarks
and trade names and applications for trademarks or tradenames, a list which has
been provided to Seller, and the trade secrets, know-how, formulae, technical
processes and information used in the Business as presently conducted; and,


 


(8)                                  Goodwill. All goodwill related to the Purchased Assets.


 


(b)                                 Purchased Assets. All of the assets
described in this Section 2.1, together with the Assigned Contracts
described in Section 2.2, but excluding the Excluded Assets, are
collectively the “Purchased Assets.”


 


(c)                                  Assets Purchased and Transferred to GOECA, LP. The
Purchased Assets to be transferred to and held by GOECA, LP shall be designated
by Buyer at the Closing.


 


2.2                               Assignment
of Contracts.


 


(a)                                  Assumption. Subject
to the terms and conditions of this Agreement at the Effective Time, the Seller
shall assign and transfer to the Buyer, all of its right, title and interest in
and to, and the Buyer shall assume all of the obligations of the Seller under
the Contracts and unexpired leases in clauses (1) to (4) (collectively,
the “Assigned Contracts”);


 


(1)                                  Real Property Leases. All leases to or by the Seller of real property used in
the Business and listed on Schedule 2.2(1) (collectively, the “Real
Property Leases”). (A sublease with respect to the Norco Breaking Room is
separately an Ancillary Agreement.)  For
each Real Property Lease there shall be entered into an assignment of the lease
to Buyer.


 


(2)                                  Personal Property Leases. All leases to or by the Seller of
personal property used in the Business including, but not limited to, those
listed on Schedule 2.2(2) (collectively, these leases are the “Personal
Property Leases”);


 


(3)                                  Contracts. All other contracts, in any case which relate to the
Business or the Purchased Assets, to which the Seller is a party, including,
but not limited to those contracts set forth on the list previously provided to
Buyer and the Material Assigned Contracts; and,


 


7

















 


(4)                                  Hardware and Software. All leases and licenses relating to any licensed
software and leased computer and systems hardware used in the Business and
listed on Schedule 2.2 (4).


 


2.3                               Excluded
Assets. Seller shall retain and not sell, transfer or assign to Buyer, and
Buyer shall not purchase or acquire from Seller, any assets not described above
as Purchased Assets, including, but not limited to the following (“Excluded
Assets”):


 


(1)                                  All Cash,
and all Accounts Receivable;


 


(2)                                  Tax
refunds;


 


(3)                                  Those
assets related to the Business but which are subject to the Subscription
Agreement as referenced in Section 7.9 (the “Contribution Assets”);


 


(4)                                  Seller’s
minute books and corporate type records;


 


(5)                                  The rights
that accrue or will accrue to Seller under this Agreement, the Ancillary
Agreements, and all related documents; and


 


(6)                                  2001
Receiving Storage and Delivery System for Liquid Egg and Oil Products
Manufactured by DSI.


 


2.4                               Assumed
Obligations. Except to the extent and subject to Seller’s obligation to
indemnify pursuant to Article 13, at the Effective Time, the Buyer shall
assume, and agree to discharge, the following obligations, and only the
following obligations, of the Business (the “Assumed Obligations”):


 


(1)                                  Contract Obligations. The obligations of the Seller under the Assigned
Contracts; provided, however, that the Buyer shall not assume any obligation
arising as a result of the Seller’s breach of, or failure to pay in the
ordinary course in accordance with, the terms of any Assigned Contract prior to
the Effective Time. Buyer shall pay the transfer fees, if any, that are
required to transfer any Assigned Contract to Buyer;


 


(2)                                  Identified Employees. The obligations with respect to Identified Employees
but only to the extent expressly provided pursuant to Section 5.8 and Article 10;
and,


 


(3)                                  Environmental Law. Liabilities, obligations, and commitments of Seller
relating to any Environmental Law to the extent relating to the Purchased
Assets or to the extent arising out of Seller’s operation of the Business.


 


2.5                               Excluded
Obligations.


 


(a)                                  No Assumption. The Buyer does not assume
(or intend to assume) or agree to pay, perform, fulfill or discharge any
obligations not specifically assumed in Section 2.4, which shall remain
with Seller, including the following;


 


8

















 


(1)                                  Excluded Assets. The Buyer is not assuming any obligations of the Seller
that relate to the Excluded Assets;


 


(2)                                  Tax Liability. Except as provided in Section 7.4(b), the Buyer is
not assuming any Tax liability of any kind of the Seller, including any Tax
liabilities arising, imposed or assessed in respect of the Seller’s operation
of the Business or its ownership of the Purchased Assets for or applicable to
periods ending on or before the Effective Time (such as Taxes on or measured by
income, sales and use Taxes, property Taxes, liabilities for withheld federal
and state income Taxes and employee or employer Federal Insurance Contribution
Act Taxes, or as a result of the Contemplated Transactions);


 


(3)                                  Employees. Except to the extent expressly provided in Section 5.8
and Article 10, the Buyer is not assuming any obligations for personal,
sick and vacation time accruals, workers’ compensation accruals, any liability
arising out of or relating to a Seller employee grievance whether or not the
employee is a Hired Employee, liabilities, and obligations of Seller to any
Employee under any health insurance plans prior to the Effective Time,
including COBRA obligations to any employees whom do not accept employment with
Buyer, variable compensation obligations for Hired Employees for, pension plan
obligations of Seller to Hired Employees, pre and post retirement welfare
benefit obligations of Seller to Hired Employees, severance, termination, or
otherwise to any employees (present or former), agents or independent
contractors of the Seller;


 


(4)                                  Debt. The Buyer is not assuming any obligations of the Seller
for any indebtedness for borrowed money;


 


(5)                                  Warranties and Returns. The Buyer is not assuming any
obligations or liabilities with respect to product returns or product warranty
claims relating to the operation of the Business prior to the Effective Time;


 


(6)                                  Accounts Payable. The Buyer is not assuming any obligations of the Seller
for any accounts payable arising from the conduct of the Business prior to the
Effective Time;


 


(7)                                  Fees and Expenses. The Buyer is not assuming any obligations of the Seller
for fees and expenses incurred in connection with the negotiation, execution,
performance and delivery of this Agreement and the Contemplated Transactions,
including, without limitation, the fees and expenses of counsel and investment
bankers; and,


 


(8)                                  Litigation. The Buyer is not assuming any obligations of the Seller
for any of the Litigation disclosed to Buyer pursuant to Section 4.10,
below.


 


(b)                                 Excluded Obligations. The obligations
referred to in Paragraph (a) clauses (1 though 8) are the “Excluded
Obligations.”


 


2.6                               Schedule Updates.
To the extent Purchased Assets listed on any schedule referred to in this Article 2
are sold, transferred, or otherwise disposed of or terminated in the ordinary
course of business prior to the Closing Date and in accordance with Section 6.2
and


 


9

















 


replaced with
assets of equal value and used in the Business, the exchange of the replacement
asset for the replacement asset no longer owned by Seller shall be deemed to be
added to the schedules without any action on the part of the Seller,
unless:  the Asset has a value of
$100,000 or more, or is owned real property under Section 2.1(a)(3),
Permits under Section 2.(a)(6), or Intellectual Property under Section 2.1(a)(7).


 


ARTICLE 3

PURCHASE PRICE AND PAYMENT


 


3.1                               Purchase
Price(a)  Consideration. In consideration for the sale,
assignment, conveyance, transfer and delivery of the Purchased Assets to the
Buyer, the Buyer shall assume the Assumed Obligations and shall make payments
to the Seller as provided in this Section 3.1, Section 3.2, and Section 3.3.


 


(b)                                 Earnest Money Deposit. Upon the execution
of this Agreement, Buyer shall deposit with Seller the Earnest Money Deposit. At
the Closing, the Earnest Money Deposit shall be credited against the Initial
Purchase Price. If this transaction does not timely close due solely to a
breach of this Agreement by Buyer, and Seller has addressed those real estate
issues noted on Schedule 7.2(a) and has met conditions precedent and
is ready to close the transaction, Seller shall retain the Earnest Money
Deposit. In the event this transaction terminates and does not close due to any
reason other than breach by Buyer, then Seller shall pay the Earnest Money
Deposit to Buyer within one Business Day of the termination.


 


3.2                               Initial
Purchase Price.


 


At the Closing, the Buyer
shall cause to be paid to Seller, by wire transfer of immediately available
funds to accounts designated by Seller,
the amount of fifty-five million dollars ($55,000,000), less the Earnest Money
Deposit, plus or minus costs or prorations of amounts due either party,
including those in Sections 7.2 and 7.4 (the “Initial Purchase Price”).


 


3.3                               Earn-Out
Payment.


 


(a)                                  Additional Payment. In addition to the
Initial Purchase Price, another payment may be due to Seller in accordance
with the following earn-out provision in this Section 3.3.


 


(b)                                 General Computation. For every dollar of
average annual earnings before interest, taxes, depreciation and amortization (“EBITDA”)
produced by Buyer over a two year period after the Closing Date in excess of an
annual average baseline amount of twenty-five million dollars ($25,000,000.00),
Buyer shall pay to Seller an amount equal to three dollars and ten cents
($3.10). This amount, if any, shall be the “Earn-Out Payment”. For purposes of
this Earn-Out Payment, EBITDA shall be defined to exclude non-recurring items
that do not relate to the ongoing operation of the business of the Buyer,
including, but not limited to, consulting, attorney, and filing fees, senior
management bonuses and related expenses, as well as the income, associated with
any public offerings, subsequent transactions, or the Contemplated
Transactions, and plant closing, moving and restructuring expenses. Notwithstanding
this exclusion for plant closing expenses, the parties agree that the actual
cash expenditures for employee severance associated with any plant closing
during the two year period after the


 


10

















 


Closing Date will
be included as a reduction to EBITDA based on a monthly charge assuming a three
year amortization schedule from the date of such expenditure. Other cash
costs associated with expenditures related to such plant closures, such as
equipment relocation, shall not be included as part of such exception. For
greater clarity, only the cash expenditures incurred related to severance will
be amortized and allowed to be included in EBITDA. EBITDA shall further exclude
EBITDA associated with the roll out of the Land O’ Lakes brand as contemplated
by the License Agreement referenced in Section 7.9. The computation of the
Earn-Out Payment shall be made initially by Buyer and in accordance with
generally accepted accounting principles, consistently applied.


 


(c)                                  Time Period for Measurement. The Earn-Out
Payment shall be calculated utilizing the earlier of the date which is 24
months after the Closing Date or the date upon which a public offering of Buyer
on a publicly traded market occurs. The date shall be the “Earn-Out Computation
Date”. If the date utilized is prior to the 24 months after the Closing Date,
then the Earn-Out Payment shall be calculated utilizing the actual annualized
EBITDA amounts through the date which are then annualized in connection with
the contemplated public offering for the period of time between the date of
public offering and the date which is 24 months post Closing.


 


(d)                                 Cap. The Earn-Out Payment (exclusive of any
interest which may be due) shall be subject to a cap of eight million
dollars ($8,000,000).


 


(e)                                  Time for Payment. Payment of the Earn-Out
Payment, if any, shall be made by Buyer within thirty days of the Earn-Out
Computation Date or as otherwise set forth in Sections 3.3(f) or (g). Payment
shall be made by wire transfer of immediately available funds to accounts
designated by Seller.


 


(f)                                    Adherence to Plan. Provision of Records; Right to
Audit. Buyer has prepared the Strategic Business Plan (“Plan”) which
has been provided to Seller for the conduct of its business after-Closing. Buyer
shall promptly notify Seller’s current parent organization, Land O’Lakes, Inc.
(“LOL”) of changes in the Strategic Plan adopted by Buyer, which shall remain
confidential to Buyer and shall not be disclosed to any third party other than
LOL and its advisors on a need-to-know basis. Any material deviation from the
Plan in which Buyer engages in business(es) other than those directly
associated with egg production, egg processing, and/or liquid egg product
marketing prior to the Earn Out Payment Date, without LOL’s prior written
consent, shall cause the maximum Earn-Out Payment of eight million dollars to
become then immediately due and payable by Buyer to Seller. On or before the
twentieth day of each month after the Closing Date through the Earn-Out
Computation Date, Buyer shall provide Seller with the previous months’ internal
financial reports after Closing to track EBITDA calculations. Within 45 days of
the Earn-Out Computation Date, Buyer shall provide Seller with its calculation
of the Earn-Out Payment, and all supporting documentation. Buyer shall permit
Seller and its representatives reasonable access to its books and records to
verify the calculation by Buyer of the Earn-Out Payment. At its own expense,
Seller shall have the right to conduct an audit to verify the calculation of
the Earn-Out Payment.


 


(g)                                 Disagreement as to Amount. The Seller shall
have 30 days from the receipt of Buyer’s calculation of the Earn-Out Payment to
either accept Buyer’s calculation or submit a written dispute notice to Buyer. The
parties shall attempt to reconcile any differences, but if they


 


11

















 


are unable to
reach agreement within 15 days of the receipt by Buyer of Seller’s notice of
dispute, then the parties shall submit the items remaining in dispute to a mutually
acceptable independent accounting firm. The firm’s calculation of the disputed
items shall be binding on both parties, and any amount owing shall be paid
within one Business Day of receipt of the independent accounting firm’s
calculation. The fees of such independent accounting firm shall be shared
equally between Buyer and Seller. In the event the parties disagree as to the
amount of the Earn-Out Payment, the undisputed amount, if any, shall be paid as
set forth in Section 3.2(e). Any other amount, whether mutually agreed to
by the parties or as otherwise determined, shall bear interest commencing with
the date that is 30 days after the Earn-Out Computation Date until paid in full
at the variable rate of Prime plus 300 basis points annual percentage rate
compounded monthly. The applicable Prime rate shall be as the same is published
from time to time by Wells Fargo N.A. Any interest due and owing shall not be
subject to the Cap referenced in Section 3.3(d) above.


 


3.4                               Allocation
of Initial Purchase Price. The Seller and the Buyer mutually agree to make
their respective allocations of the Initial Purchase Price in accordance with Section 1060
of the Code and as set forth in Schedule 3.4 (“Purchase Price Allocation”).
The Seller and the Buyer shall each file IRS Form 8594 at the time and in
the manner as required by Treasury Regulation Section 1.1060-1 consistent
with the Initial Purchase Price Allocation. The Seller and the Buyer shall be
bound by the Initial Purchase Price Allocation in preparing and filing their
respective tax returns and agree to allocate any adjustment to the purchase
price as determined for federal income tax purposes in a manner consistent with
the Initial Purchase Price Allocation. The Seller and the Buyer mutually agree
to provide each other with the assistance as is reasonably necessary for the
other party to satisfy its reporting obligations under Section 1060 of the
Code.


 


ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF THE SELLER


 


4.1                               Purchased
Assets Sold “As Is” Except as Warranted. EXCEPT AS OTHERWISE SPECIFICALLY
SET FORTH IN THIS AGREEMENT, THE PURCHASED ASSETS ARE BEING SOLD AND
TRANSFERRED TO BUYER ON AN “AS-IS, WHERE IS” BASIS WITHOUT ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED. Each of the Sellers, jointly and severally,
represents and warrants as of the date of this Agreement and as of the date of
the Closing and only with respect to the Business (and not as to any other
operations, such as Seller’s shell egg operations) and the Purchased Assets
(and not as to any other assets), as follows:


 


4.2                               Existence
and Good Standing. Moark and Cutler are limited liability companies duly
organized, validly existing and in good standing under the laws of the State of
Missouri. Hi Point is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of California. Norco,
MEC, and L&W are corporations duly organized, validly existing and in good
standing under the laws of the States of California, Missouri and Ohio,
respectively. Each Seller has all requisite power and authority to own, lease
and operate its applicable Purchased Assets and to conduct its portion of the
Business as it is presently conducted and is duly qualified to transact
business and is in good standing in each jurisdiction in which the relevant
Purchased Assets are owned, leased or operated by the Seller; and also is in


 


12

















 


good standing in
each jurisdiction where the nature of the operation of the Business requires the
Seller to qualify to transact business, except where the failure to be
qualified and in good standing would not reasonably be expected to have a
Material Adverse Effect.


 


4.3                               Due
Authorization. Each Seller has all requisite power and authority to execute,
deliver and perform this Agreement and the Ancillary Agreements to which
it is a party and to consummate the Contemplated Transactions, subject to the
terms and conditions contained in this Agreement. The execution, delivery and
performance by the Seller of this Agreement and the Ancillary Agreements to
which the Seller is a party and the consummation by the Seller of the
Contemplated Transactions have been duly and validly authorized by all
necessary action on the part of each Seller, and no other actions or
proceedings on the part of any Seller is necessary to authorize the
execution, delivery and performance by each Seller of this Agreement and by the
relevant Seller of the Ancillary Agreements to which the Seller is a party or
the Contemplated Transactions. Each Seller has duly and validly executed and
delivered this Agreement and has duly and validly executed and delivered (or
prior to or at the Closing shall duly and validly execute and deliver) the
Ancillary Agreements to which it is a party. Upon execution and delivery of
this Agreement (assuming due execution and delivery of this Agreement by all
other Parties) together with the Ancillary Agreements to which any Seller is a
party, constitutes the legal, valid and binding obligations of each Seller,
enforceable against each Seller in accordance with their respective terms,
except as may be limited by:  (1) applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws in effect
which affect creditors’ rights generally; or (2) principles of equity
including legal or equitable limitations on the availability of specific
remedies.


 


4.4                               Absence
of Conflicts. Neither the execution and delivery of this Agreement nor any
of the Ancillary Agreements to which any Seller is a party nor the consummation
of any of the Contemplated Transactions will Materially violate, conflict with,
or result in a Material breach of the terms, conditions or provisions of:  (1) the charter, by-laws or other
organizational documents of any of the Sellers; (2) any judgment, decree
or order of any Governmental Authority to which any of the Sellers is subject
or by which any of the Sellers is bound; or (3) any requirements of Laws
applicable to any of the Sellers.


 


4.5                               Absence
of Changes or Events. From August 1, 2002, through the date of this
Agreement, and except as previously disclosed to Buyer, the Business has been
conducted by Seller in the ordinary course of business with substantially
consistent practices. Without limiting the generality of the immediately preceding
sentence, from August 1, 2002, through the date of this Agreement, the
Business has not, except as previously disclosed to Buyer in accordance with
the procedures provided for herein:


 


(1)                                  Suffered
any damage or destruction that has resulted in the discontinuance of operations
or otherwise has resulted in a Material Adverse Effect;  and/or,


 


(2)                                  Made any
change in the method of accounting or accounting practice or policy.


 


4.6                               Business
Financial Statements. The Business Financial Statements for the years 2002,
2003, 2004, and 2005, copies of which have been provided to Buyer, are true and
correct,


 


13

















 


and are complete
in all Material respects. These Business Financial Statements, which have been
audited by Moore Stephens Frost, PLC, present fairly, in all Material respects,
the financial position, results of operations and cash flows of the Business at
the respective dates and for the respective periods indicated and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis.


 


4.7                               Title to
Assets.


 


(a)                                  Title to Purchased Assets.
Except as previously disclosed to Buyer and other than Owned Real Property and
the Leased Real Property, which are addressed in Section 4.7(b), the
Seller has good, valid and marketable title to all of the Purchased Assets and
valid leasehold interests in, or other rights to use, all of the Purchased
Assets, in each case, free and clear of all encumbrances, subject only to the
Permitted Encumbrances.


 


(b)                                 Title to Real Property. Schedules
2.1(3) and 2.2(1) set forth a complete list of all Owned Real
Property and a complete list of all interests in real property leased by Seller
and used in the Business (the “Leased Real Property”). Except as set forth in
any Title Commitment provided to Buyer and/or any surveys prepared by Buyer as
provided in Section 7.2(a), the Seller has, or at Closing will have:  (1) good, valid and marketable fee title
to the Owned Real Property; and (2) valid leasehold interests in the
Leased Real Property, in each case, free and clear of all encumbrances, except
for the Permitted Encumbrances.


 


4.8                               Compliance
with Laws; Permits.


 


(a)                                  No Notice of Noncompliance. Except as previously disclosed to Buyer, and since August 1, 2002,
the Seller has not received any notice from a Governmental Authority alleging
that it has failed to conduct the Business and maintain the Purchased Assets in
compliance with all applicable Laws and, to Seller’s Knowledge, the Business
and Purchased Assets are operating in material compliance with all Laws.


 


(b)                                 Permits. To Seller’s
Knowledge, the Seller owns, holds, possesses or lawfully uses in the operation
of the Business all Permits which are necessary to conduct the Business as
currently conducted by the Seller or to own and use the Purchased Assets as
currently used in the Business and, except as previously disclosed to Buyer, is
in material compliance with all Permits. Except as previously disclosed to
Buyer, the Seller has not received any written notice of any claim of
noncompliance with respect to any Permits. Seller has previously provided a
true, correct, and complete summary description and list of all material
Permits currently used in the Business.


 


4.9                               Taxes.
Except as previously disclosed to Buyer, as of the date of Closing, Seller has
filed or caused to be filed, or properly extended the required filing date for,
all Tax Returns which are required to be filed by Seller on or prior to the
Closing, and has paid all Taxes which have become due pursuant to the Tax
Returns or pursuant to any assessment which has become payable on or prior to
the Closing, except for any Taxes or assessments which are being contested in
good faith by appropriate proceedings.


 


14

















 


4.10                        Litigation.
Except as previously disclosed to Buyer, there are no legal, administrative, or
arbitration proceedings, suits, or actions of any nature (“Litigation”)
relating to the Business, any Purchased Asset or the Contemplated Transactions
pending, or, to the Knowledge of the Seller, threatened against the Seller, by
or before any Governmental Authority or by or on behalf of any third party. Those
matters previously disclosed to Buyer constitute a true, correct, and complete
list of all Litigation against the Seller relating to the Business, any
Purchased Asset, or the Contemplated Transactions.


 


4.11                        Inventory.
The inventory of the Business including but not limited to any Purchased Assets
was acquired or produced and has been maintained in the ordinary course of
business and is of a quality that meets industry standards and the requirements
of the purchasers of the inventory.


 


4.12                        Contracts.
Other than purchase orders or service orders placed in the ordinary conduct of
business defined in Section 6.2, within the list of Material Assigned
Contracts previously disclosed to Buyer, is a complete list of Assigned
Contracts that by any of their individual terms can reasonably be expected to
require future payment by or to Seller of $50,000 or more in the aggregate, or
which call for delivery or performance on a date more than one year from the
date of this Agreement and each are summarily identified in Schedule 2.2
to this Agreement as the “Material Assigned Contracts”. Seller has made
available, or will make available at least 20 days prior to the Closing Date,
to Buyer copies of all Material Assigned Contracts. Seller has received no
notice that any party to any of the Material Assigned Contracts intends to
cancel or terminate the agreements and to Seller’s Knowledge, there is no
default or event that with notice and/or lapse of time would constitute a
material default by any party to any of the Material Assigned Contracts.


 


4.13                        Employee
Matters.


 


Seller has provided to
Buyer a complete and correct list of all Employees, together with each Employee’s
name, position, location, salary or hourly rate and hire date and all accrued
vacation, sick leave, wages or other compensation in respect of each Employee.


 


4.14                        Environmental
Matters. Except as previously disclosed to Buyer, with respect to the
Business and the Purchased Assets, and since August 1, 2000, the Seller
has received no written notices from any Governmental Authority that the Seller
has not been in compliance with Environmental Laws. Except as previously
disclosed to Buyer, to the Knowledge of Seller, there has been no unlawful
Release of any Hazardous Material at or from the Purchased Assets or from the
operations of the Business. Except as previously disclosed to Buyer, to Seller’s
Knowledge, Seller, has not generated, treated, stored, handled, disposed,
transferred, produced or processed any Hazardous Material or any solid waste at
the Purchased Assets or from the operations of the Business, except in material
compliance with all applicable Environmental Laws. Seller has provided to Buyer
copies of all written reports prepared by third party environmental consultants
in Seller’s possession pertaining to the Purchased Assets.


 


4.15                        Labor
Matters. The Seller has not agreed to recognize any union or other
collective bargaining unit with respect to the Business, nor to Seller’s
Knowledge has any union or other collective bargaining unit been certified as
representing any Employees. Except as


 


15

















 


previously disclosed to
Buyer, for the past one year from the date of this Agreement, the Seller, with
respect to the Business:  (1) has
no, and has not had any, unfair labor practice charges or complaints pending
or, to the Knowledge of the Seller, threatened against it before the National
Labor Relations Board; (2) has no, and has not had any charges pending or,
to the Knowledge of the Seller, threatened against it before the Equal
Employment Opportunity Commission or any state or local agency responsible for
the prevention of unlawful employment practices; (3) has no, and has not
had any investigations, charges or claims made or pending or, to the Knowledge
of the Seller, threatened against it by the Occupational Safety and Health
Administration or any comparable state or local agency; (4) has no, and
has not had any labor strike, slowdown or work stoppage that occurred or
was threatened against it; and (5) has not had Knowledge of the occurrence
of any union organizational effort or representation petition with respect to
any Employees.


 


4.16                        Major
Customers; Major Suppliers. For the years ended 2003, 2004 and 2005, the
identity of the twenty largest customers (or 80%) of the Business based on the
aggregate value of the products purchased from Seller has been provided to
Buyer. Except as disclosed to Buyer, no customer has materially reduced or, the
Seller’s Knowledge, intends to materially reduce purchases of products from the
Business. For the years ended 2003, 2004 and 2005, the identity of the twenty
largest suppliers (or 80% of supply costs) of raw materials or equipment of the
Business. Except as disclosed to Buyer, no supplier has materially reduced or
to Seller’s Knowledge, will materially reduce the amount of raw materials or
equipment available for purchase by the Business.


 


4.17                        Intellectual
Property. The Seller owns, or possesses legally enforceable rights to use
all of the Intellectual Property, free and clear of all encumbrances and
subject to the intellectual property Contracts which have been delivered to
Buyer and identified as the “Intellectual Property Contracts”. To Seller’s
Knowledge, the Intellectual Property does not infringe on the rights of any
third parties.


 


4.18                        Books and
Records. The Books and Records accurately and fairly reflect, in reasonable
detail, the transactions with respect to the Business. The Books and Records
constitute all of the customer lists and related records of Seller for the
customers of the Business.


 


4.19                        Equipment
and Fixed Assets. The Equipment and Fixed Assets are in general working
order in all Material respects, reasonable wear and tear and depreciation
because of age excepted.


 


4.20                        Insurance.
Seller has provided Buyer a list of the insurance policies and summarizes the
coverages that the Seller has in place with respect to the Purchased Assets. The
insurance policies are in amounts and types that are customary in the industry
for similar assets, and all the policies are in full force and effect.


 


4.21                        Misrepresentations
and Omissions. No representation, warranty, covenant or statement by the
Seller in this Agreement, the Ancillary Agreements, the Schedules or the
certificates or other documents furnished or to be furnished to the Buyer
pursuant to the Contemplated Transactions contains or will contain any untrue
statement of a Material fact, or


 


16

















 


omits or will omit to
state a Material fact required or necessary to be stated to make the statements
contained in this Agreement, not false or Materially misleading.


 


4.22                        Purchased
Assets Necessary for Business. Seller represents and warrants that, except
as disclosed in Schedule 4.22, the Purchased Assets, the two license
agreements referenced as Ancillary Agreements, and the Contribution Assets
represent all of the assets owned or controlled by Seller that are necessary or
convenient for the operation of the Business as presently conducted, and, but
for modifications, additions, deletions, substitutions and the like in the
ordinary course of business, represent all of the assets that produced the 2005
Business Financial Statements.


 


ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF THE BUYER


 


5.1                               Representations.
The Buyer makes these representations and warranties as of the date of this
Agreement and as of the date of Closing.


 


5.2                               Existence
and Good Standing. The Buyer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware. The
Buyer has all requisite power and authority to own, lease and operate its
assets and to conduct its business and is duly qualified to transact business
and is in good standing in each jurisdiction in which its assets are owned,
leased or operated; and also is in good standing in each jurisdiction where the
nature of the operation of its business requires the Buyer to qualify to
transact business, except where the failure to be qualified and in good
standing would not reasonably be expected to have a material adverse effect on
the Buyer’s business.


 


5.3                               Due
Authorization. The Buyer has all requisite power and authority to execute,
deliver and perform this Agreement and the Ancillary Agreements to which
it is a party and to consummate the Contemplated Transactions, subject to the
terms and conditions contained in this Agreement. The execution, delivery and
performance by the Buyer of this Agreement and the Ancillary Agreements to
which it is a party and the consummation by the Buyer of the Contemplated
Transactions have been duly and validly authorized by all necessary action on
the part of the Buyer, and no other actions or proceedings on the part of
the Buyer is necessary to authorize the execution, delivery and performance by
the Buyer of this Agreement and by the Buyer of the Ancillary Agreements to
which it is a party or the Contemplated Transactions. The Buyer has duly and
validly executed and delivered this Agreement and has duly and validly executed
and delivered (or prior to or at the Closing shall duly and validly execute and
deliver) the Ancillary Agreements to which it is a party. Upon the execution
and delivery of this Agreement (assuming due execution and delivery of this
Agreement by all other Parties) together with the Ancillary Agreements to which
the Buyer is a party, shall constitute, legal, valid and binding obligations of
the Buyer, enforceable against the Buyer in accordance with their respective
terms, except as may be limited by: 
(1) applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws in effect which affect creditors’ rights generally; or (2) principles
of equity including legal or equitable limitations on the availability of
specific remedies.


 


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5.4                               Absence
of Conflicts. Neither the execution and delivery of this Agreement nor any
of the Ancillary Agreements to which the Buyer is a party nor the consummation
of any of the Contemplated Transactions will Materially violate, conflict with,
or result in a Material breach of the terms, conditions or provisions of:  (1) the articles of organization,
limited liability company agreement, or other organizational documents of the
Buyer; (2) any judgment, decree or order of any Governmental Authority to
which the Buyer is subject or by which the Buyer is bound; or (3) any
requirements of Laws applicable to the Buyer.


 


5.5                               Litigation.
There is no litigation of any nature pending or asserted against the Buyer by
or before any Governmental Authority or by or on behalf of any Third Party
which questions or challenges the validity of this Agreement or any Ancillary
Agreement or any of the Contemplated Transactions or which, if adversely
determined, would adversely affect the ability of the Buyer to consummate the Contemplated
Transactions.


 


5.6                               Financial
Capability. The Buyer:  (1) at
the Closing, will have sufficient funds available to pay the Initial Purchase
Price and any expenses incurred by the Buyer in connection with the
Contemplated Transactions; (2) at the Closing, will have the resources and
capabilities (financial or otherwise) to perform its obligations under
this Agreement, including the Assumed Obligations; (3) at the due date,
will have sufficient funds available to pay the Earn-Out Payment; and (4) has
not incurred, and will not voluntarily incur, any obligation, commitment,
restriction or liability of any kind, which would impair or adversely affect
such funds, resources and capabilities. The Buyer has obtained the commitment
for financing as evidenced by the mandate letter from Co-Bank (the “Commitment
Letter”), which has been provided to Seller.


 


5.7                               Misrepresentations
and Omissions. No representation, warranty, covenant or statement by the
Buyer in this Agreement, the Ancillary Agreements, the Schedules and the
certificates to be furnished to the Seller pursuant to this Agreement contains
or will contain any untrue statement of a Material fact, or omits or will omit
to state a Material fact required or necessary to be stated to make the
statements contained in this Agreement not false or materially misleading.


 


5.8                               Hired
Employees. Buyer represents to Seller that Buyer does not currently
contemplate a facility closing or layoff of, Hired Employees, or any
terminations that in the aggregate would affect more than ten percent (10%) of
Hired Employees during the one (1) year period following the Closing. Subject
to any of the limitations set forth in Article 13, Buyer shall indemnify,
defend and hold Seller harmless from and against any and all reasonable loss,
cost, damage, or expense, including reasonable attorneys’ fees arising out of
or connected to a breach by Seller of this representation and warranty
contained in this Section 5.8.


 


5.9                               Financial
Statements. Buyer has previously delivered to Seller the “Audited Financial
Statements” of the Buyer and the “Interim Financial Statements” of the Buyer.


 


The Audited Financial
Statements present fairly, in all Material respects, the financial position,
results of operations and cash flows of Buyer at the respective dates and for
the respective periods indicated and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The Interim Financial Statements present
fairly, in all Material respects, the financial position and results of


 


18

















 


operations of
Buyer at the date and for the period indicated and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis with the Audited Financial Statements, subject to normal
year-end adjustments and except that the Interim Financial Statements do not
contain all footnote disclosures required by generally accepted accounting
principles.


 


ARTICLE 6

COVENANTS OF THE SELLER


 


6.1                               Covenant
to Buyer. The Seller covenants with the Buyer to complete the actions in
this Article 6:


 


6.2                               Conduct
of Business. Except as otherwise contemplated by this Agreement, and except
as otherwise consented to by the Buyer in writing, from the date of this
Agreement until the Effective Time, the Seller shall:


 


(1)                                  Conduct the
Business in the usual and ordinary course consistent with Seller’s current
business practices;


 


(2)                                  Use
commercially reasonable efforts, consistent with the Seller’s current business
practices, to preserve the goodwill of the Business and preserve Seller’s
current relationships with Employees, customers and suppliers of the Business;


 


(3)                                  Use,
operate, repair, replace and maintain all Purchased Assets in a commercially
reasonable manner and consistent with the Seller’s current business practices;


 


(4)                                  Maintain in
full force and effect all types of insurance described in Section 4.20
that provides coverage for the Purchased Assets; and,


 


(5)                                  Promptly
notify the Buyer in writing of any significant incidents or accidents involving
the Business or the Purchased Assets.


 


6.3                               Disclosure
Schedules; Notice of Developments. From and after the date of this
Agreement until Closing, Seller shall promptly notify Buyer by written update
to the Disclosure Schedules of any development causing a breach of any of the
representations or warranties set forth in Article 4. Buyer shall have its
remedies available to Buyer under this Agreement, which shall include termination
of this Agreement pursuant to Section 8.6 by reason of the development.
The written notice pursuant to this Section 6.3 shall be deemed to have
amended the Disclosure Schedules, to have qualified the representations and
warranties contained in Article 4, and to have cured any misrepresentation
or breach of warranty that otherwise might have existed by reason of the
development.


 


19

















 


ARTICLE 7

COVENANTS OF THE BUYER AND THE SELLER


 


7.1                               Access to
Information, Inspections.


 


(a)                                  Access to Seller. During
the period from the date of this Agreement through the Closing Date, upon the
terms and conditions required by Seller (including any bio-security protocols)
and upon reasonable advance notice received from the Buyer, the Seller shall
give the Buyer and its authorized representatives reasonable access during
regular business hours, to all properties, offices, facilities, and Books and
Records of the Seller relating to the Business, the access to be exercised in a
manner that does not unreasonably interfere with the Seller’s operations or
result in a breach of confidentiality under this Agreement.


 


(b)                                 Access to Information Post Closing. Buyer acknowledges that Seller may need access to information
relating to the Business acquired by Buyer after the Closing Date. Seller
acknowledges that Buyer must maintain biosecurity at the facilities and
confidentiality of the business operation information. Recognizing the concerns
of Buyer and Seller, the parties agree that upon reasonable request by Seller’s
parent, Land O’Lakes, Inc., Buyer shall, at and after the Closing,
provide, at Land O’Lakes, Inc.’s cost, requested information abut the
Business reasonably necessary to determine any matter relating to or arising
during the period ending on or before the Closing Date. If Buyer cannot, or
chooses not to, provide the requested information, then upon request of Land O’Lakes, Inc.,
Buyer shall grant Land O’Lakes, Inc. or its agents (providing the agents
are not employed or affiliated with a competitor of the Buyer and the agents
are subject to confidentiality restrictions in the same manner as Land O’Lakes, Inc.)
access to the Books and Records of the Business and, if necessary, the
employees and properties of the Business on terms and conditions reasonably
established by Buyer to protect biosecurity, confidentiality, and in a manner
that does not unreasonably interfere with Buyer’s operations. Buyer shall
notify Land O’Lakes, Inc. of its record retention and destruction policy. If
Land O’Lakes, Inc. desires records that are scheduled to be destroyed, it
shall notify Buyer at least 30 days prior to the destruction date and Buyer
shall provide copies to Land O’Lakes, Inc. upon Land O’Lakes, Inc.’s
agreeing to pay for the reasonable duplication expenses; provided, however,
Buyer agrees not to destroy any Books and Records received from Seller
hereunder during the one year period following the Closing Date.


 


7.2                               Title
Evidence, Closing Fees and Proration of Utilities.


 


(a)                                  Title Commitment. As
evidence of title to the Owned Real Property, and for informational purposes as
to the Leased Real Property, the Seller has caused to be prepared and delivered
to the Buyer at the Seller’s expense, a commitment or preliminary title report
for the applicable California properties (a “Title Commitment”) from First
American Title Company (the “Title Company”) together with copies of all
exception documents, to issue to the Buyer at Closing an owner’s title
insurance policy (for Owned Real Property only), subject to any easements and
encroachments and other encumbrances disclosed by the Title Commitments. Buyer
also has obtained land surveys for the Owned Real Property and Lease Real
Property. Buyer, and Buyer’s lenders, have reviewed the status of the Owned
Real Property and the Lease Real Property and Buyer hereby accepts the
condition of the Owned Real Property and the Leased Real Property except that
Seller agrees that it shall address, on or before Closing,


 


20

















 


the items listed on Schedule 7.2(a),
attached hereto, which has separately been agreed to by Buyer and Seller.


 


(b)                                 Title Fees and Costs. All
fees charged by the Title Company for the Title Commitment shall be paid by
Seller. The Buyer shall pay all costs to record the general warranty deeds,
including payment of any transfer tax, and the costs for the final title policy
and endorsements.


 


(c)                                  Utility Charges. All
utility charges, including gas, oil, electricity, telephone, sewer and water,
pertaining to the Purchased Assets shall be prorated between Seller and Buyer
as of the Closing Date and settled outside of Closing; and accordingly, the
portion of any invoices for utility charges received following the Closing Date
which have accrued up to and including the Closing Date shall be for Seller’s
account, and paid for or reimbursed by Seller to Buyer with five (5) business
days of receipt and written notice to Seller, and any invoices for utility
charges which accrue after the Closing Date shall be for Buyer’s account.


 


7.3                               Motor
Vehicles. The Seller shall take all actions and prepare all documents
necessary to effect the transfer to the Buyer of all motor vehicle
registrations pertaining to automobiles, trucks, and other motor vehicles of
whatever kind used in the Business in compliance with the motor vehicle
registration and other applicable Laws of any jurisdictions where such motor
vehicles are registered. All transfer taxes related to the sale of motor
vehicles in connection with the consummation of the Contemplated Transactions
shall be borne by the Buyer.


 


7.4                               Tax Matters.


 


(a)                                  Property Taxes. At the
Closing, all state and local real and personal property Taxes, tonnage taxes,
ad valorem and similar Taxes and assessments (“Property Taxes”) which are past
due or have become due and payable in the normal course of business upon any of
the Purchased Assets on or before the Effective Time shall be paid by the
Seller together with any penalty or interest. All Property Taxes imposed by any
Tax authority with respect to the Purchased Assets that have been paid or are
due and payable with respect to a Taxable period beginning before the Effective
Time and ending after the Effective Time (taking into account whether the
Property Taxes are payable in advance or in arrears) shall be apportioned
between:  (1) the period beginning
before and ending at the Effective Time (the “Pre-Transfer Period”); and (2) the
period beginning on the day immediately after the Effective Time and ending on
the last day of the relevant Taxable period (the “Post-Transfer Period”). In
performing the apportionment, all Property Taxes shall be prorated on the
assumption that an equal amount of Property Tax applies to each day of the
relevant Taxable period regardless of how installment payments are billed or
made. The Seller shall be liable for all Property Taxes apportioned to the
Pre-Transfer Period. The Buyer shall be liable for all the Property Taxes
apportioned to the Post-Transfer Period.


 


(b)                                 Tax Payments at Closing. At
the Closing, Buyer shall pay to Seller the amount of any previously paid
Property Taxes for which Buyer is liable under


 


21

















 


Section 7.4(a),
net of any payments due from Seller to Buyer. Upon request by Buyer (but not
more than ten (10) days prior to the due date for paying the Tax) Seller
shall pay to the Buyer within three (3) business days of the request the
amount of any Property Taxes for which the Seller is liable under Section 7.4(a).
The Buyer shall pay to the appropriate Governmental Authority all Property
Taxes which become due and payable after the Effective Time with respect to a
Taxable period beginning before the Effective Time and ending after the
Effective Time. To the extent the Title Company handles the Closing as it
relates to the Owned Real Property, all Property Tax payments as noted in Section 7.4(a) shall
be paid to the Title Company or noted as debits and/or credits on the closing
statement and the Title Company shall pay the applicable Governmental Authority
directly.


 


(2)                                  Foreign Person Certificate. At or before the Closing Date, Seller
shall provide a certificate to Buyer, in the form prescribed by Treasury
Regulations under Section 1445 of the Code, that Seller is not a foreign
person within the meaning of Section 1445 of the Code and the Treasury
Regulations thereunder.


 


7.5                               Confidentiality.
Buyer and Seller reaffirm that they are bound by terms and conditions of that
Confidentiality Agreement dated April 19, 2005, between Buyer and Moark, LLC,
(the “Confidentiality Agreement”), and in furtherance of the agreement, the
Buyer and Seller shall keep confidential all information obtained by it with
respect to the other in connection with this Agreement and the negotiations
preceding this Agreement, the terms and conditions of this Agreement and any
Ancillary Agreement, and shall use the information solely in connection with
the Contemplated Transactions, and as otherwise contemplated by the
Confidentiality Agreement. If the Contemplated Transactions are not
consummated, each Party shall return to the other upon request, without
retaining the information in electronic, paper or any other form, any
schedules, documents, or other written information obtained from the other in
connection with this Agreement and the Contemplated Transactions. Notwithstanding
the foregoing, no Party shall be required to keep confidential or return any
information that:  (1) is required
to be disclosed by Law, pursuant to an order or request of a judicial authority
or Governmental Authority having competent jurisdiction, or pursuant to the rules and
regulations of any national stock exchange applicable to the disclosing party
(provided the party seeking to disclose the information provides the other
party with reasonable prior written notice); (2) is required to be
disclosed by the Seller in connection with obtaining the release of an
encumbrance; or (3) can be shown to have been generally available to the
public other than as a result of a breach of this Section 7.5.


 


7.6                               Payments
Received. After the Closing, the Seller and Buyer shall hold and promptly
transfer and deliver to the other, from time to time as and when received by
them, any cash, checks with appropriate endorsements (using their best efforts
not to convert the checks into cash), or other property that they may receive
on or after the Closing which properly belongs to the other party, including
any insurance proceeds, and shall account to the other for all of the receipts.


 


7.7                               Satisfaction
of Conditions. Without limiting the generality or effect of any provision
of Articles 8 and 9, prior to the Closing, each of the Parties shall use their
respective commercially reasonable efforts with due diligence and in good faith
to satisfy promptly all


 


22

















 


conditions
required hereby to be satisfied by the Party in order to expedite the
consummation of the Contemplated Transactions.


 


7.8                               Accounts
Receivable. The Accounts Receivable of the Business arising prior to the
Effective Time remain property of the Seller. Buyer hereby agrees to use
commercially reasonable efforts to collect Accounts Receivable excluded under Section 2.3(1) and
to deliver to Seller or its assignee, within three (3) Business Days after
its receipt, any checks made payable to Seller and all monies delivered to
Buyer representing payment on any excluded accounts receivable. The Buyer also
agrees to cooperate with the Seller or its assignee in the Seller or its
assignee’s collection of any accounts receivable.


 


7.9                               Ancillary
Agreements. The parties covenant to each other that, on the Closing Date
and as a condition to Closing for both Seller and Buyer, Seller and Buyer shall
execute and deliver to each other, or cause to be executed and delivered, the
following agreements, (collectively, the “Ancillary Agreements”):


 


(1)                                  Egg Supply Agreement pursuant to which Moark shall supply eggs to Buyer;


 


(2)                                  Transitional Services Agreement;


 


(3)                                  Subscription Agreement pursuant to which Seller shall
contribute assets of the Business valued at five million dollars ($5,000,000)
to Golden Oval Eggs, LLC in exchange for an agreed upon membership interest in
Golden Oval Eggs, LLC;


 


(4)                                  Norco Breaking Room Sublease;


 


(5)                                  License Agreement between Land O’Lakes, Inc. and Buyer;


 


(6)                                  Subordinated Promissory Note between Land O’Lakes, Inc. and
Buyer;


 


(7)                                  License
Agreement re “Norco Ranch” and “McAnally”;


 


(8)                                  Shared
Services Agreement;


 


(9)                                  Land O’Lakes
Indemnification Guarantee Agreement; and


 


(10)                            R &
D Services Agreement.


 


7.10                        HSR Act.
Each of Seller and Buyer shall file as of the date of execution hereof any
notification and report forms required for the Contemplated Transactions
pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the “HSR Act”), and will promptly file or cause to be filed any
supplemental information requested under the HSR Act. All filing fees required
to be paid by Buyer under the HSR Act will be paid by Buyer.


 


23

















 


ARTICLE 8

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER


 


8.1                               Conditions
Precedent. The obligations of the Buyer to consummate the Contemplated
Transactions are subject to the satisfaction or waiver by the Buyer of the
conditions precedent in this Article 8 on or before the Closing Date or as
otherwise required in this Agreement.


 


8.2                               Accuracy
of Representations and Warranties. The representations and warranties of
the Seller contained in this Agreement and in any certificate or other writing
delivered by the Seller pursuant to this Agreement or the Ancillary Agreements
shall be true, accurate and correct as of the date of this Agreement and as of
the Closing Date, as if made at and as of the date (unless any representation
or warranty refers specifically to a specified date, in which case the
representation or warranty shall be true, accurate and correct on and as of the
specified date) in all Material respects. The Buyer shall have received a
certificate signed by an executive officer of the Seller to the foregoing
effect.


 


8.3                               Compliance
with Agreements and Covenants. The Seller shall have performed and complied
in all respects with all of its covenants, obligations and agreements contained
in this Agreement to be performed and complied with by it on or prior to the
Closing Date or any other date specified in this Agreement in all material
respects.


 


8.4                               No
Injunctions. There shall not be in effect any temporary restraining order,
preliminary injunction, injunction or other pending or threatened action by any
third party or any order of any court or Governmental Authority restraining or
prohibiting the Closing of the Contemplated Transactions.


 


8.5                               Intentionally
Deleted.


 


8.6                               No
Material Adverse Effect. There shall not have occurred any event,
circumstance, change or effect that has had, or could reasonably be expected to
result in, a Material Adverse Effect to the Business or on or to the Purchased
Assets.


 


8.7                               Deliveries.
The Seller shall have made, or be prepared to make at the Closing, all of the
deliveries set forth in Section 11.2.


 


8.8                               HSR
Act. All filings required under the HSR Act shall have been made, and the
waiting period required thereby shall have expired or terminated.


 


ARTICLE 9

CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER


 


9.1                               Conditions
Precedent. The obligations of the Seller to consummate the Contemplated
Transactions are subject to the satisfaction or waiver by the Seller of the
following conditions precedent in this Article 9 on or before the Closing
Date or as otherwise required in this Agreement.


 


9.2                               Accuracy
of Representations and Warranties. The representations and warranties of
the Buyer contained in this Agreement and in any certificate or other writing
delivered by the Buyer pursuant to this Agreement or the Ancillary Agreements
shall be true, accurate and correct as of the date of this Agreement and as of
the Closing Date, as if made at


 


24

















 


and as of the date
(unless any representation or warranty refers specifically to a specified date,
in which case the representation or warranty shall be true, accurate and
correct on and as of the specified date) in all Material respects. The Seller
shall have received a certificate signed by an executive officer of the Buyer
to the foregoing effect.


 


9.3                               Compliance
with Agreements and Covenants. The Buyer shall have performed and complied
with all of its covenants, obligations and agreements contained in this
Agreement to be performed and complied with by it on or prior to the Closing
Date or any other date specified in this Agreement in all Material respects.


 


9.4                               No
Injunctions. There shall not be in effect any temporary restraining order,
preliminary injunction, injunction or other pending or threatened action by any
Third Party or any order of any court or Governmental Authority restraining or
prohibiting the Closing of the Contemplated Transactions.


 


9.5                               Deliveries.
The Buyer shall have made, or be prepared to make at the Closing, all of the
deliveries set forth in Section 11.3.


 


9.6                               HSR
Act. All filings required under the HSR Act shall have been made, and the
waiting period required shall have expired or terminated.


 


ARTICLE 10

EMPLOYEES AND BENEFIT PLANS


 


10.1                        Offer of
Employment. Seller shall cause all of the Employees to be terminated
effective at the Effective Time, subject to the Closing having occurred. Buyer
shall offer employment to all Employees identified by Buyer in writing to
Seller as employees that will be hired by Buyer at Closing (“Identified
Employees”) at substantially similar salary or wage rates as were in effect on
the date of Closing and with a benefits package which is comparable to the
package currently maintained for employees of Buyer. Buyer shall offer to
employ all Identified Employees (hereinafter, all Identified Employees who accept
Buyer’s offer of employment being referred to as the “Hired Employees”)
effective as of the Effective Time; provided, that in the ease of Identified
Employees who are on disability or leave of absence on the Closing Date, their
employment with Seller will not end and unless and until the Identified
Employees are removed from disability status employment with Buyer will not be
offered unless and until they promptly advise Buyer when they are released to
return to work. Seller makes no representation as to whether Employees will
accept employment with Buyer. Seller shall be responsible for any employee
benefit obligations for Employees, including Hired Employees, accrued prior to
the Effective Time or the date the Employee is hired by Buyer. At Closing, Seller
will transfer to Buyer funds equivalent to the value of accrued vacation and/or
sick time attributable to Hired Employees, and Buyer agrees to credit each
Hired Employee with the vacation and/or sick time balances in accordance with
Buyer’s employment policies, in addition to any benefits that may accrue
to the Hired Employees according to Buyer’s customary practice or policy. Buyer
shall comply with all applicable laws regarding non-discrimination in making
decisions identifying or affecting Identified Employees, including without
limitation requirements for reasonable accommodation of Identified Employees on
disability leave. Subject to any of the limitations set forth in Article 13,
Buyer shall indemnify, defend and hold Seller harmless from and against any


 


25

















 


and all loss, costs,
damage or expense, including reasonable attorneys’ fees, arising out of or
connected to a breach by Seller of this covenant contained in this Section 10.1.


 


10.2                        Recognition.
Buyer shall consider for purposes of participation, eligibility and vesting
(but not necessarily for purposes of benefit accrual and compensation
arrangements) under its employee benefit plans (including vacation), the
service of any Hired Employee with either Seller or their respective affiliates
prior to the Closing Date.


 


ARTICLE 11

CLOSING


 


11.1                        Closing.
The Closing shall take place on or before June 30, 2006, at the offices of
Land O’Lakes, Inc. in Arden Hills, Minnesota, at or about 9:00 a.m.
Central Standard Time. The parties agree that time is of the essence. The date
on which the Closing occurs is referred to in this Agreement as the “Closing
Date.”  The Closing shall be effective as
of the Effective Time.


 


11.2                        Deliveries
by the Seller. At or prior to the Closing, the Seller shall deliver to the
Buyer the following, each dated the Closing Date and duly executed by the
Seller:


 


(1)                                  Real and Personal Property. One or more assignment and assumption
agreements, general warranty deeds for each parcel of Owned Real Property,
together with an updated Title Commitment for each parcel of Owned Real
Property, bills of sale and other conveyance documents (collectively, the “Conveyance
Documents”) with respect to tangible personal property included in the Purchased
Assets in forms acceptable to Buyer and Seller;


 


(2)                                  Possession of Assets. Possession of the Purchased Assets and the Real
Property Leases, the Personal Property Leases and all other Assigned Contracts
listed in any Schedule;


 


(3)                                  Vehicle Certificates. Certificates of title for all vehicles included in the
Purchased Assets, duly endorsed for transfer to the Buyer;


 


(4)                                  Transfer Instruments. Other instruments of transfer reasonably requested by
the Buyer to evidence the transfer of the Purchased Assets to the Buyer and
consummation of the Contemplated Transactions;


 


(5)                                  Conditions Precedent Certificate. A certificate, dated the Closing
Date, of the Seller certifying as to the compliance by the Seller with Sections
8.1 through 8.11;


 


(6)                                  Authorization Certificate. A certificate, dated the Closing
Date, of the Seller certifying that all necessary actions have been taken by
each Seller to approve and authorize this Agreement and the Ancillary
Agreements to which each Seller is a party and the consummation by each Seller
of the Contemplated Transactions (together with an incumbency and signature
certificate regarding the officer or member signing on behalf of the Seller);


 


26

















 


(7)                                  Foreign Person Certificate. A certificate, in the form prescribed
by Treasury regulations under Section 1445 of the Code, that the Seller is
not a foreign Person within the meaning of Section 1445 of the Code;


 


(8)                                  Certificate of Good Standing. Certificates of Good Standing for
Seller in each state where Owned Real Property is located;


 


(9)                                  Ancillary Agreements. The Ancillary Agreements, fully executed; and,


 


(10)                            Other Documents. The other documents and instruments as may be
reasonably required to consummate the Contemplated Transactions.


 


11.3                        Deliveries
by the Buyer. At the Closing, the Buyer shall make the payment described in
Section 3.2 and shall deliver to the Seller the following, each dated the
Closing Date and duly executed by the Buyer:


 


(1)                                  Assignment and Assumption Agreements. One or more Assignment and Assumption
Agreements under which the Assigned Contracts are assigned to Buyer and Buyer
agrees to comply with all of Seller’s obligations under the Assigned Contracts
which become due and dischargeable on or after the Closing Date, in forms
acceptable to Buyer and Seller;


 


(2)                                  Conditions Precedent Certificate. A certificate, dated the Closing
Date, of the Buyer, certifying as to compliance by the Buyer with Sections 9.1
through 9.6;


 


(3)                                  Authorization Certificate. A certificate, dated the Closing
Date, of the Buyer certifying that all necessary actions have been taken by the
Buyer to approve and authorize this Agreement and the Ancillary Agreements to
which the Buyer is a party and the consummation by the Buyer of the Contemplated
Transactions (together with an incumbency and signature certificate regarding
the officer(s), partners or members signing on behalf of the Buyer);


 


(4)                                  Ancillary Agreements. The Ancillary Agreements, fully executed; and,


 


(5)                                  Other Documents. The other documents and instruments as may be
reasonably required to consummate the Contemplated Transactions.


 


ARTICLE 12

TERMINATION


 


12.1                        Termination.
This Agreement may be terminated at any time on or prior to the Closing:


 


(1)                                  Mutual Agreement. By the mutual written agreement of the Seller and the
Buyer;


 


(2)                                  Expiration Date. By the Seller or the Buyer if the Closing shall not
have taken place on or before July 31, 2006; provided, however, that the
terminating party


 


27

















 


shall not have failed to fulfill any
obligation under this Agreement or be in breach of any representation or
warranty under this Agreement, which failure or breach was the cause of or
resulted in the failure of the Closing to occur on or before that date;


 


(3)                                  Government Order. By the Seller or the Buyer, if any court of competent
jurisdiction or other Governmental Authority shall have issued a final and
non-appealable order, decree or ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the consummation of the
Contemplated Transactions;


 


(4)                                  Breach. By the Seller or the Buyer, if prior to the Closing
Date, the other party is in default or breach in any material respect of any
representation, warranty, covenant, or agreement contained in this Agreement,
and the default or breach is not cured within twenty (20) Business Days after
the date written notice of the breach is delivered by the party claiming the
default or breach to the party in default or breach; or


 


(5)                                  Material Adverse Effect. By the Buyer if an event or
circumstance shall have occurred since the date of this Agreement that has a
Material Adverse Effect on the Business or the Purchased Assets.


 


12.2                        Effect of
Termination. If this Agreement is terminated pursuant to Section 12.1,
all obligations of the Parties under this Agreement shall terminate, except for
the obligations set forth in Sections 3.1(b) (Earnest Money Deposit), 7.5
(Confidentiality), 14.2 (Expenses), 14.8 (Publicity), and 14.12 (Applicable
Law; Jurisdiction), which shall survive the termination of this Agreement, and
except that no termination shall relieve any Party from liability for any prior
breach of this Agreement.


 


12.3                        Remedy
Upon Breach. In the event this Agreement is terminated by Seller pursuant
to Section 12.1(4) due to a breach by Buyer, Seller’s sole and
exclusive remedy shall be to retain the Earnest Money Deposit. In the event
this Agreement is terminated by Buyer pursuant to Section 12.1(4) due
to a breach by Seller, Buyer’s sole and exclusive remedy shall be its direct
monetary damages actually incurred, subject to an aggregate maximum sum of one
million five hundred thousand dollars.


 


ARTICLE 13

INDEMNIFICATION


 


13.1                        Excluded
Assets and Excluded Obligations. Without limitation as to time or dollar
amount, Seller shall indemnify and hold Buyer harmless from and against any
loss, cost, expense or other damage (including, without limitation, reasonable
attorneys’ fees and expenses) resulting from, arising out of, or incurred with
respect to, or (in the case of claims asserted against Buyer by a third party),
alleged to result from or arise out of or have been incurred with respect to
any of the Excluded Assets (except the Contribution Assets, which are subject
to the Membership Interest and Contribution Agreement) or Excluded Obligations.


 


13.2                        Purchased
Assets and Assumed Obligations. Without limitation as to time or dollar
amount, and except to the extent subject to Seller’s obligation to indemnify
Buyer as set forth in Sections 13.1 and 13.3, Buyer shall indemnify and hold
Seller harmless from and against


 


28

















 


any loss, cost,
expense or other damage (including, without limitation, reasonable attorneys’
fees and expenses) resulting from, arising out of, or incurred with respect to,
or (in the case of claims asserted against Buyer by a third party), alleged to
result from or arise out of or have been incurred with respect to any of the
Purchased Assets or any of the Assumed Obligations.


 


13.3                        Breach of
Representations and Warranties.


 


(a)                                  Applicability. Except as
provided in Section 12.3, the Parties agree as provided in this Section as
follows regarding indemnification of each other concerning claims, actions, or
proceedings arising from a breach of a representation and warranty under this
Agreement or in any certificate signed by a party and delivered to the other
party in connection with this Agreement.


 


(b)                                 Survival. The
representations and warranties of Seller and Buyer contained in this Agreement
or contained in any certificate delivered pursuant to this Agreement shall
survive for three years following the Closing Date, except those
representations of Seller set forth in Section 4.14 “Environmental Matters”
shall survive for five years following the Closing Date, at which time they
shall expire. No claim by either party regarding a breach of any representation
or warranty shall be made after the relevant date. Any claim asserted within
the period of survival as provided shall be deemed timely made for purposes
hereof.


 


(c)                                  Indemnification. Subject
to Sections 13.1, 13.2, 13.3(a) and 13.3(b), each Party shall
indemnify and hold the other party harmless from and against any loss, cost,
expense or other damage (including, without limitation, reasonable attorneys’
fees and expenses) resulting from, arising out of, or incurred with respect to,
or (in the case of claims asserted by a third party), alleged to result from or
arise out of or have been incurred with respect to the falsity or the breach of
any representation or warranty made by the Party or in any Schedule or any
certificate issued pursuant to this Agreement.


 


(d)                                 Limitation on Amount. Each
party’s obligation to indemnify the other party provided in Section 13.3(c) shall
not exceed the aggregate maximum sum of six million dollars ($6,000,000) (the “Indemnification
Cap”), provided however, that neither party shall be liable to the other Party
for indemnification until the time as the aggregate damages incurred by the
Party seeking indemnification shall have exceeded three hundred eighty thousand
dollars (the “Indemnification Basket”). Each party shall only be obligated to
indemnify the other for amounts in excess of the Indemnification Basket,
subject to the Indemnification Cap, and with respect to environmental matters
referenced in Section 4.14, the Indemnification Cap shall be increased to
twelve million dollars ($12,000,000) and there shall be no applicable
Indemnification Basket.


 


13.4        Procedure.


 


(a)           Assertion.
Within thirty (30) days after receipt of the written assertion of any claim or
the commencement of any action (“Assertion”) against any party who is or may be
entitled to indemnification under this Article 13, (the “Indemnified Party”),
the Indemnified Party shall notify the party from whom the indemnification may
be sought


 


29

















 


(the
“Indemnifying Party”) in writing of the Assertion. Failure to so notify the
Indemnifying Party shall relieve the Indemnifying Party of any liability under
this Agreement.


 


(b)           Participation
in Claim. The Indemnifying Party shall be entitled to participate in
and, to the extent the Indemnifying Party elects by written notice to the
Indemnified Party within thirty (30) days after receipt by the Indemnifying
Party of notice of the Assertion, to assume the defense of the Assertion, at
the Indemnifying Party’s own expense, with counsel chosen by the Indemnifying
Party and satisfactory to the Indemnified Party. Notwithstanding that the
Indemnifying Party shall have elected by the written notice to assume the
defense of any Assertion, the Indemnified Party shall have the right to
participate in the investigation and defense, with separate counsel chosen by
the Indemnified Party, and the fees and expenses of the counsel shall be paid
by the Indemnified Party.


 


(c)           Settlement
and Compromise. Notwithstanding anything to the contrary in this
Section, neither party shall:  (1) settle
or compromise any action or consent to the entering of any judgment which does
not include as an unconditional term thereof the delivery by the claimant or
plaintiff to such other party of a duly executed written release of such party
from all liability in respect of such party; or (2) settle or compromise any
action without the consent of the other party, which consent shall not be
unreasonably withheld. Failure to comply with the provisions of this Section
13.4(c) shall be construed as a waiver of any right of indemnification related
to the claim.


 


(d)           For Other Claims. A claim for
indemnification for any matter not constituting a Third Party Claim shall be
asserted by written notice to the party from whom indemnification is sought.


 


13.5                        Payment.
Subject to the provisions of this Article 13, the Indemnifying Party shall
promptly pay and/or reimburse the indemnified party for any amounts due
hereunder. In the event Buyer is the Indemnified Party, Buyer shall seek full
payment and/or reimbursement from the Sellers as the Indemnifying Parties. If,
after exhausting all commercially reasonable efforts to obtain full payment for
any indemnification amounts owed under this Agreement, Buyer is still owed some
or all of such indemnification amounts, Seller may seek recovery of such
amount from MoArk LLC’s parent entity, Land O’Lakes, Inc., pursuant to the
terms of the Land O’Lakes Indemnification Guarantee Agreement which is one of
the Ancillary Agreements.


 


13.6                        Sole
Remedy. With the exception of fraud, or unless another remedy is
specifically provided for elsewhere in this Agreement, Buyer and Seller each
agree that the indemnification obligations set forth in this Article 13
constitute the sole and exclusive remedy with respect to any and all claims
relating to the subject matter of this Agreement. In furtherance of the
foregoing, Seller and Buyer waive, to the fullest extent permitted under
applicable law, all rights, claims and causes of action Seller may have
against Buyer and Buyer may have against Seller under or based upon any
federal, state, local or foreign statute, law, ordinance, rule, or regulation
or arising under or based upon common law or otherwise, except to the extent
provided in Section 13.3. Except as may be specifically otherwise
provided in this Agreement, neither party shall be liable to the other for
incidental, special, punitive, exemplary or


 


30

















 


consequential
damages including, but not limited to, loss of profits or revenue, interference
with business operations, loss of lenders, buyers, diminution in value of the
Purchased Assets, or inability to use the Purchased Assets, in excess of the
applicable Indemnification Cap.


 


13.7                        No Third
Party Beneficiary Claims. This Article 13 regarding Indemnification is
not intended to create, and does not create, any third party beneficiary or
similar rights in any third party.


 


13.8                        Not
Applicable to Fraud or Ancillary Agreements. Notwithstanding anything to
the contrary contained in this Agreement, the indemnification limitations set
forth in this Article 13 shall not apply to any instance of fraud or for
any claims solely arising out of or connected solely with any of the Ancillary
Agreements.


 


ARTICLE 14

MISCELLANEOUS


 


14.1                        Disclosure
Schedules. The inclusion of any matter on any schedule shall not
constitute an admission by the Seller that the Matter is material or would
reasonably be expected to have a Material Adverse Effect unless the Schedule is
given in response to a provision identifying Materiality to be disclosed.


 


14.2                        Expenses.
Except as otherwise provided in this Agreement, each Party shall bear its own
expenses with respect to the Contemplated Transactions.


 


14.3                        Amendment.
This Agreement may be amended, modified or supplemented only by a writing
signed by the Buyer and the Seller.


 


14.4                        Interpretation.
The headings preceding the text of articles and sections included in this
Agreement and the headings to schedules and exhibits attached to this Agreement
are for convenience only and shall not be deemed part of this Agreement or
be given any effect in interpreting this Agreement. The terms as set forth in
this Agreement have been arrived at after mutual negotiation with the advice of
counsel and, therefore, it is the intention of the parties that its terms may not
be construed against any of the parties by reason of the fact that it was
prepared by one of the parties.


 


14.5                        Notices.
Any notice, request, instruction or other document to be given under this
Agreement by a Party shall be in writing and shall be deemed to have been
given:  (1) when received if given
in person or by courier or a courier service; (2) on the date of
transmission if sent by telex, facsimile or other electronic transmission
(receipt confirmed); or (3) five (5) Business Days after being
deposited in the mail, certified or registered, postage prepaid.


 


31

















 


If to
the Seller, addressed as follows:


 


Moark,
LLC


Attention:  Daniel Knutson


Land O’Lakes, Inc.


4001
Lexington Avenue North


Arden
Hills, Minnesota 55126


 


with
copies to:


 


Land O’Lakes, Inc.


Law
Department, MS 2500


P.O. Box
64101


St.
Paul, MN  55164-0101


Attention:  John Curran


 


If to
the Buyer, addressed as follows:


 


Golden
Oval Eggs, LLC


1800
Park Avenue East


P.O. Box 615


Renville, MN  56284


Attention:  Dana Persson


 


With a
copy to:


 


Mark Hanson


Lindquist & Vennum PLLP


4200 IDS Center


80
South Eighth Street


Minneapolis,
MN  55402-2274


 


or to such other individual or address or facsimile number as a Party may designate
for itself by notice given under this Section.


 


14.6                        Waivers.
The failure of a Party at any time or times to require performance of any
provision shall in no manner affect its right at a later time to enforce the
same. No waiver by a party of any condition or of any breach of any term,
covenant, representation or warranty contained in this Agreement shall be
effective unless in writing, and no waiver in any one or more instances shall
be deemed to be a further or continuing waiver of any condition or breach in
other instances or a waiver of any other condition or breach of any other term,
covenant, representation or warranty.


 


14.7                        Successors
and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective permitted successors and assigns,
provided, however, that neither this Agreement, nor any Ancillary Agreements
(except as may be expressly provided otherwise in any Ancillary Agreement)
nor any right or obligation under this


 


32

















 


Agreement may be
assigned by any Party without the prior written consent of the other Party;
provided, further, that no assignment shall relieve a party from its
obligations under this Agreement or any Ancillary Agreement.


 


14.8                        Publicity.
No public announcement or other publicity regarding the transactions referred
to in this Agreement shall be made by the Buyer or the Seller or any of their
respective officers, directors, employees, representatives or agents, without
the prior written agreement of the Seller and the Buyer, respectively, unless
the announcement or disclosure is required by any Governmental Authority or
Applicable Law, and even then advance notice shall be given to the other Party.
Any announcement shall be agreed to by the Parties as to form, content, timing
and manner of distribution or publication. Nothing in this Section 14.8
shall prevent the Parties from discussing the transactions with those persons
whose consent, approval, agreement or opinion, as the case may be, is
required for consummation of the transactions. The Parties shall exercise all
reasonable efforts to assure that such persons keep confidential any
information relating to this Agreement or any agreement, document or instrument
contemplated in this Agreement.


 


14.9                        Further
Assurances. The Seller and the Buyer agree to cooperate fully with each
other in connection with obtaining the satisfaction of the conditions set forth
in Articles 8 and 9. The Seller and the Buyer agree to execute and deliver
other documents, certificates, agreements and other writings and to take other
actions as may be reasonable, necessary or desirable in order to
consummate or implement expeditiously the Contemplated Transactions and any
agreement, document or instrument contemplated in this Agreement.


 


14.10                 Severability.
If any provision of this Agreement is held invalid, illegal or unenforceable,
the validity, legality or enforceability of the other provisions of this
Agreement shall not be affected, and there shall be deemed substituted for the
provision at issue a valid, legal and enforceable provision as similar as
possible to the provision at issue.


 


14.11                 Entire
Understanding. This Agreement, the Confidentiality Agreement, and the
Ancillary Agreements set forth the entire agreement and understanding of the
Parties with respect to the Contemplated Transactions and supersede any and all
prior agreements, arrangements and understandings among the Parties relating to
the subject matter.


 


14.12                 Applicable Law;
Jurisdiction. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Minnesota without
giving effect to the principles of conflicts of law. Any suit, action or
proceeding between the parties hereto relating to this Agreement or to any
agreement, document or instrument delivered pursuant hereto or in connection
with the transactions contemplated hereby or in any other manner arising out of
or relating to the transactions contemplated by or referenced in this Agreement
(except for the Ancillary Agreements,, which shall contain their own
provision), shall be commenced and maintained exclusively in courts having
sites within the City of Minneapolis, State of Minnesota. The parties hereto
submit themselves unconditionally and irrevocably to the personal jurisdiction
of such courts, as applicable. The parties hereto irrevocably waive any
objection to such personal jurisdiction or venue, including, but not limited
to, the objection that any suit, action or proceeding has been brought in an
inconvenient forum.


 


33

















 


14.13                 Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
original instrument.


 


14.14                 Passage of Title
and Risk of Loss. Legal title, equitable title, and risk of loss in respect
of the Purchased Assets will not pass to the Buyer until such Purchased Assets
are transferred at the Closing, which transfer, once it has occurred, will be
deemed effective for tax, accounting, insurance and other computational
purposes as of the Effective Time.


 


34

















 


IN WITNESS WHEREOF, the
parties hereto have executed and delivered this Asset Purchase and Sale
Agreement as of the date first above written.


 


	
  GOLDEN OVAL EGGS, LLC

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Chris R. Edgington

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
  Chris R. Edgington

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Chair, Board of Managers

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GOLDEN OVAL EGGS, LLC

  	
   

  	
  GOECA, LP

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Dana Persson

  	
   

  	
   

  	
  By:

  	
  /s/ Dana Persson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
  Dana Persson

  	
   

  	
  Print Name:

  	
  Dana Persson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Chief Executive Officer

  	
   

  	
  Title:

  	
  CEO of General Partner, GOECMA, Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MOARK, LLC

  	
   

  	
  CUTLER AT ABBEVILLE, L.L.C.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Craig A. Willardson

  	
   

  	
   

  	
  By:

  	
  /s/ Craig A. Willardson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
  Craig A. Willardson

  	
   

  	
   

  	
  Print Name:

  	
  Craig A. Willardson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President & CEO

  	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HI POINT INDUSTRIES, LLC

  	
   

  	
  L & W EGG PRODUCTS, INC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Craig A. Willardson

  	
   

  	
   

  	
  By:

  	
  /s/ Craig A. Willardson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
  Craig A. Willardson

  	
   

  	
   

  	
  Print Name:

  	
  Craig A. Willardson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MOARK EGG CORPORATION

  	
   

  	
  NORCO RANCH, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Craig A. Willardson

  	
   

  	
   

  	
  By:

  	
  /s/ Craig A. Willardson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
  Craig A. Willardson

  	
   

  	
   

  	
  Print Name:

  	
  Craig A. Willardson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
																	



 


35