Exhibit 10.20


 


PURCHASE AND SALE AGREEMENT


 










 


	
  Agreement Date:

  	
  December 15, 2008

  
	
   

  	
   

  
	
  Scheduled Closing Date:

  	
  December 31, 2008

  
	
   

  	
   

  
	
  Seller:

  	
  Golden Oval Eggs, LLC

  
	
   

  	
   

  
	
  Seller:

  	
  GOECA, LP

  
	
   

  	
   

  
	
  Seller:

  	
  GOEMCA, Inc.

  
	
   

  	
   

  
	
  Seller:

  	
  Midwest Investors of Iowa, Cooperative

  
	
   

  	
   

  
	
  Purchaser:

  	
  Rembrandt Enterprises, Inc.

  



 





















 


	
  PURCHASE
  AND SALE AGREEMENT

  	
  1

  
	
   

  	
   

  
	
  PURCHASE
  AND SALE AGREEMENT

  	
  1

  
	
   

  	
   

  
	
  ARTICLE 1.

  	
  BASIC TRANSACTION

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1.

  	
  SALE AND PURCHASE OF ASSETS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.2.

  	
  EXCLUDED ASSETS

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 1.3.

  	
  LIMITATION ON LIABILITIES AND OBLIGATIONS ASSUMED

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 1.4.

  	
  SALES, USE, AND DEED TAXES

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2.

  	
  PURCHASE
  PRICE AND PAYMENT

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
  PURCHASE PRICE

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.2.

  	
  POST CLOSING
  ADJUSTMENT TO PURCHASE PRICE - WORKING CAPITAL ADJUSTMENT

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.3.

  	
  PRORATION OF TAXES

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 2.4.

  	
  ALLOCATION OF PURCHASE PRICE

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3.

  	
  CONDUCT
  AND TRANSACTION OF BUSINESS PRIOR TO CLOSING

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
  ACCESS TO INFORMATION

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.2.

  	
  RESTRICTIONS IN OPERATION OF THE BUSINESS

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.3.

  	
  NO SOLICITATION OF OTHER OFFERS

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 3.4.

  	
  TITLE EVIDENCE

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 3.5.

  	
  HART-SCOTT-RODINO ACT FILINGS

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 3.6.

  	
  NOTIFICATION OF CERTAIN MATTERS

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.7.

  	
  RISK OF LOSS

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.8.

  	
  PUBLIC STATEMENTS

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.9.

  	
  GOE AND MIDWEST MEMBER APPROVAL

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.10.

  	
  DISCLOSURE SCHEDULES; NOTICE OF DEVELOPMENTS

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.

  	
  CLOSING

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
  CLOSING

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 4.2.

  	
  DOCUMENTS TO BE DELIVERED BY SELLER

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 4.3.

  	
  DOCUMENTS TO BE DELIVERED BY PURCHASER

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5.

  	
  CONDITIONS
  OF CLOSING; ABANDONMENT OF TRANSACTION

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 5.1.

  	
  CONDITIONS TO OBLIGATION OF PURCHASER TO PROCEED ON THE
  CLOSING

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 5.2.

  	
  CONDITIONS TO OBLIGATIONS OF SELLER TO PROCEED ON THE
  CLOSING

  	
  20

  
				



 


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  Section 5.3.

  	
  TERMINATION OF AGREEMENT

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 5.4.

  	
  CONSEQUENCES OF TERMINATION

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 5.5.

  	
  REMEDY UPON TERMINATION

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6.

  	
  POST-CLOSING
  OBLIGATIONS

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 6.1.

  	
  FURTHER DOCUMENTS AND ASSURANCES

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 6.2.

  	
  COLLECTION OF RECEIVABLES

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 6.3.

  	
  ACCESS TO INFORMATION

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 6.4.

  	
  SELLER’S EMPLOYEES

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 7.1.

  	
  REPRESENTATIONS AND WARRANTIES OF SELLER

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 7.2.

  	
  REPRESENTATIONS AND WARRANTIES OF PURCHASER

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  	
  RESTRICTIVE COVENANTS

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 8.1.

  	
  NON-COMPETITION

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 8.2.

  	
  NON-DISCLOSURE

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 8.3.

  	
  NO USE OF NAME

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 8.4.

  	
  INJUNCTIVE RELIEF

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9.

  	
  SURVIVAL

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 9.1.

  	
  SURVIVAL OF REPRESENTATIONS AND WARRANTIES

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10.

  	
  GENERAL

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 10.1.

  	
  ENTIRE AGREEMENT

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 10.2.

  	
  APPLICABLE LAW; WAIVER OF JURY TRIAL; CONSENT TO
  JURISDICTION

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 10.3.

  	
  SCHEDULES AND EXHIBITS

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 10.4.

  	
  EXECUTION IN COUNTERPARTS

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 10.5.

  	
  HEADINGS

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 10.6.

  	
  PRONOUNS

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 10.7.

  	
  PLURALS

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 10.8.

  	
  BINDING EFFECT AND BENEFIT

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 10.9.

  	
  SUCCESSORS AND ASSIGNS

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 10.10.

  	
  NO THIRD PARTY RIGHTS

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 10.11.

  	
  NOTICES

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 10.12

  	
  DEFINITIONS

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 10.13.

  	
  SEVERABILITY

  	
  48

  
				



 


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  Section 10.14.

  	
  EXPENSES

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 10.15.

  	
  PUBLICITY

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.16.

  	
  WAIVER

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.17.

  	
  Construction; INTERPRETATION

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.18.

  	
  DISCLOSURE SCHEDULES

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.19.

  	
  SPECIFIC PERFORMANCE

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.20.

  	
  ATTORNEY FEES

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 10.21.

  	
  CONSENTS

  	
  50

  



 


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PURCHASE AND SALE AGREEMENT


 


This Purchase and Sale Agreement (the “Agreement”) is made this 15th day of December,
2008, by and among GOLDEN OVAL EGGS, LLC,
a Delaware limited liability company (“GOE”), MIDWEST
INVESTORS OF IOWA, COOPERATIVE, a cooperative association organized
under Chapter 501 of the Iowa Code (“Midwest”), GOEMCA, INC.,
a Delaware Corporation (“GOEMCA”), GOECA, LP, a
Delaware limited partnership (“GOECA,” and, together with GOE, GOEMCA and
Midwest, collectively, the “Seller” or individually, a “Seller Party”), and REMBRANDT ENTERPRISES, INC., an Iowa Subchapter S
corporation (“Purchaser”).   Unless
otherwise defined in this Agreement, capitalized terms are defined in SECTION 10.12.


 


RECITALS:


 


A.                                  Seller
is engaged in the business of producing, processing and distributing value
added egg products, including, without limitation, liquid whole egg, liquid egg
white, and liquid egg yolk, as well as other further processed, value added egg
products (the “Business”);


 


B.                                    The
Seller occupies or utilizes facilities located at (i) 1800 Park Avenue
East, Renville, MN  56284, (ii) 15650
35th Ave. N., Suite 110, Plymouth, MN  55446, (iii) 13780 450th
Street, Thompson, Iowa 50478, (iv) 496 Industrial Park Road, Abbeville, AL
36310, (v) 1597 S. Washington, Millersburg, OH  44654, 1811 Mountain Ave, Norco, CA  92860, (vi) 4755 East 49th,
Los Angeles, CA  90058 and (vii) 409
N. Wood, Neosho, MO  64850 (collectively,
the “Business Premises”);


 


C.                                    Midwest
owns the real estate located in Thompson, Iowa used by GOE in the Business; and


 


D.                                   Purchaser
is desirous of purchasing from Seller, as a going concern business, and the
Seller is desirous of selling to Purchaser, substantially all of the assets of
Seller, all upon, and subject to, the terms and conditions set forth in this
Agreement.


 


NOW, THEREFORE, in consideration of the recitals and the mutual
undertakings, representations, warranties, covenants, and agreements contained
in this Agreement, the Parties agree as follows:


 


ARTICLE
1.                             BASIC TRANSACTION.


 


Section 1.1.                                SALE AND PURCHASE OF
ASSETS.


 


Subject to the terms and conditions in this Agreement,
Seller agrees on the Closing (as defined in SECTION 4.1(a)) to
assign, sell, transfer, convey, and deliver to Purchaser, and Purchaser agrees
on the Closing to purchase and accept from Seller, all of the assets and
personal property of Seller (excepting only the assets specifically identified
as “Excluded Assets”) related to or used in the operation of the Business,
wherever the same may be located (collectively referred to as the “Purchased
Assets”), including, without limitation, the following:


 


(a)                                 Land.  The parcels of land described in EXHIBIT 1.1(a) attached
to this Agreement (the “Land”), together with all rights, easements and
interests appurtenant to the 


 


1





















 


Land, including, but not limited to, any water or mineral rights owned
by or leased to Seller.


 


(b)                                Improvements.  All improvements located on the Land,
including, but not limited to, all buildings, as well as all other structures,
systems, and utilities associated with, and utilized by Seller in the ownership
and operation of the Business (all improvements are collectively referred to as
the “Improvements”).


 


(c)                                 Fixed
Assets.  All fixed assets, including
all machinery and equipment, furniture, tools, motor vehicles, loaders,
maintenance equipment, signage, office furniture, fixtures and equipment, computer
workstations and other office equipment, servers, laptops, copiers, scanners,
printers, telephone equipment, computer hardware, telephone equipment, and
leasehold improvements together with all spare parts, accessories and tooling
and specifically including those items set forth on the fixed asset register, a
copy of which is attached hereto as EXHIBIT 1.1(c) (all fixed assets are
collectively referred to as the “Fixed Assets”);


 


(d)                                Intangible
Property.  All intangible personal
property, including all business records, Customer and Prospect Information,
all computer programs and software including back-up copies and documentation
therefore, and specifically, without limitation, those items set forth on EXHIBIT
1.1(d), sales orders in process, customer lists, customer sales history,
and all related records (including contact information), vendor lists and item
numbers, logos, telephone numbers, letterhead, customer contracts for future
business, client license agreements, artwork (whether created for customers or
for advertising purposes and in whatever form maintained), marketing materials,
catalogs, samples, sales materials, sales literature, displays, advertising
pieces, and goodwill, as well as any and all product formulation, bills of
material and processing specifications (including, without limitation, customer
specifications), (“Intangible Property”);


 


(e)                                 Receivables.  Accounts and Notes Receivable from any source
whatsoever arising (“Receivables”);


 


(f)                                   Intellectual
Property.  All Intellectual Property
Rights (the “Intellectual Property”) including those items set forth in EXHIBIT
1.1(f);


 


(g)                                Trade
Rights.  All distributor, supplier
and marketing industry memberships, registrations, rights and privileges and
any documentary evidence thereof (“Trade Rights”);


 


(h)                                Licenses
and Permits.  All permits, licensing
approvals, and notifications, governmental or otherwise, relating to the
Business, including those items set forth on EXHIBIT 1.1(h) (“Licenses
and Permits”);


 


(i)                                    Franchises.  All distributor and franchise contract rights
related to the Business, including those identified on EXHIBIT 1.1(i) (“Franchises”);


 


2





















 


(j)                                    Contracts.  All rights arising under contracts (whether
written or oral) related to and/or arising out of the operation of the Business (the “Contracts”)
as well as any claims (including any insurance claims and
warranty claims), causes of action, credits, guarantees, mortgages, pledges,
and covenants against completion in favor of Seller or under which Seller is
the beneficiary, including those matters identified on EXHIBIT 1.1(j) attached
to this Agreement (collectively, “Contract Rights”);


 


(k)                                 Advertising
Materials.  All advertising and
marketing materials, sales literature, sales aids, trade show displays,
customer displays, advertising pieces, catalogs and samples on hand and in
possession of customers and negatives, film and production materials for any of
the foregoing (“Advertising Materials”);


 


(l)                                    Prepaid
Assets, Deposits and Patronage Dividends. 
All prepaid assets and deposits, including, but not limited to, deposits
for advertising, leases, equipment, leases, utilities and bids, trade show
deposits, and prepaid license fees, royalties, subscriptions, dues, interest,
insurance premiums, cash surrender value of insurance policies and maintenance
agreements, feed, grain and ingredient deposits, pullet deposits (collectively,
“Prepaid Assets”), as well as all right, title and interest in and to patronage
dividends with Farm Credit and Co-Bank as set forth on EXHIBIT 1.1(l);


 


(m)                              Inventory.  All inventory of finished goods,
work-in-process, raw stock, materials and supplies (“Inventory”), including,
without limitation, inventories of pullets and laying hens, feed, grain, feed
supplements, medications, related nutrition and feed supplements, raw
materials, finished goods, supplies, work in process, semi finished goods,
components, and packaging materials, including, without limitation, those items
set forth in the Inventory Ledger attached hereto as EXHIBIT 1.1(m);


 


(n)                                Shares
and Securities.  All shares of
capital stock of any corporation and other securities or rights to acquire any
shares or securities, including, without limitation, interests in AEI and
United Mills as set forth on EXHIBIT 1.1(n) (“Shares and Securities”).


 


(o)                                Miscellaneous
Assets.  Any other miscellaneous
assets related to the Business, including all underlying assets reflected in
the May 31, 2008 and August 31, 2008 balance sheets (“Other Assets”).


 


Section 1.2.                                EXCLUDED ASSETS.


 


Notwithstanding anything to the contrary in this
Agreement, Purchaser does not purchase, and Seller does not sell, any of the
following assets (“Excluded Assets”):


 


(a)                                 Corporate
Books and Records.  Seller’s
corporate minute books and unitholder or investor information (provided that
Seller will provide copies to Purchaser upon request by Purchaser for
reasonable business purposes).


 


(b)                                Cash.  Seller’s cash on hand, or on deposit with any
financial institution.


 


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(c)                                 Other
Assets.  The items of personal
property specifically listed on EXHIBIT 1.2(c),
attached to this Agreement.


 


(d)                                Millersburg
Lease and Certain Millersburg Assets.


 


Any lease agreement related to the
Millersburg, Ohio location, and assets located at Millersburg and used in the
operation of the Millersburg facility which are sold by Seller prior to Closing
(subject to Purchaser’s right of first refusal on two (2) Diamond Breakers
used in the operation at the Millersburg facility).


 


(e)                                 Receivables
in Litigation.  The items of
Receivables specifically listed on EXHIBIT 1.2(e).


 


Section 1.3.                                LIMITATION ON
LIABILITIES AND OBLIGATIONS ASSUMED.


 


Except for the Assumed Liabilities, as defined in SECTION 2.1(c)(i),
Purchaser shall not assume any Liability of Seller, or any obligations, or
undertakings of Seller of any kind or nature, whether fixed or contingent,
known or unknown, determined or determinable, due or not yet due.


 


Section 1.4.                                SALES, USE, AND DEED
TAXES.


 


Seller and Purchaser shall each be fifty percent (50%)
responsible for payment of any sales and use taxes assessable with respect to
the transfer of the Purchased Assets. 
Seller and Purchaser shall each be fifty percent (50%) responsible for
all transfer, or deed taxes assessable with respect to the transfer of the Land
and the Improvements.


 


ARTICLE 2.                             PURCHASE PRICE AND PAYMENT.


 


Section 2.1.                                PURCHASE PRICE.


 


The purchase price for the Purchased Assets, as
adjusted by the Closing Working Capital Adjustment, shall be One Hundred Twenty
Three Million Seven Hundred Fifty Thousand and no/100 Dollars ($123,750,000.00)
(the “Cash  Purchase Price”) and the assumption of
the Assumed Liabilities (collectively the “Purchase Price”).  Purchaser shall pay the Purchase Price to Seller
as follows:


 


(a)                                 Payment
at Closing.  One Hundred Twenty One
Million Two Hundred Fifty Thousand and no/100 Dollars ($121,250,000.00) (the “Closing
Cash Payment”) by wire transfer in immediately available funds at Closing, as
adjusted by:


 


(i)                                    a
reduction for the total remaining cost to complete the Thompson Facility
Improvements, as such term is defined in SECTION 5.1(o), and


 


(ii)                                 a
reduction for the total remaining cost to complete the Safety/Environmental
Improvements, as such term is defined in SECTION 5.1(o);


 


(b)                                Post-Closing
Payment.  Two Million Five Hundred Thousand and no/100
Dollars ($2,500,000.00), plus interest at a 3 Month Libor rate calculated at
Closing, as adjusted after the computation of the Closing Working Capital
Adjustment, payable as provided in SECTION 2.2.


 


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(c)                                 Assumption
Agreement.


 


(i)                                    Assumption
of the following enumerated liabilities of Seller (the “Assumed Liabilities”)
pursuant to a written assumption agreement delivered by Purchaser at Closing in
the form of EXHIBIT 2.1(c) (the “Assumption Agreement”) :


 


(A)                             The
assigned contracts listed on EXHIBIT 2.1(c)(i)(A) (the “Assigned
Contracts”);


 


(B)                               Current
trade accounts payable to the extent accrued on the Final Working Capital Statement,
as defined in SECTION 2.2(d)(ii);


 


(C)                               Seller’s
obligation to perform work for which Seller has received payment prior to
Closing (e.g. customer deposits) to the extent accrued on the Final Working
Capital Statement;


 


(D)                              Accrued
salaries, commissions, wages, and payroll taxes for the current pay period and
accrued PTO/vacation (subject to the maximum PTO/vacation carryover under
Purchaser’s PTO Plan) relating solely to employees hired by Purchaser on the
Closing (the “Hired Employees”), to the extent accrued on the Final Working
Capital Statement;


 


(E)                                Seller’s
obligation under the leases for property, equipment or other assets directly
related to the Business which are expressly set forth on EXHIBIT
2.1(c)(i)(E); and


 


(F)                                Other
accrued expenses as set forth on EXHIBIT 2.1(c)(i)(F) to the extent
accrued on the Final Working Capital Statement.


 


provided, however, that Seller shall continue to pay
and perform each of the Assumed Liabilities to be assumed by Purchaser in
accordance with the terms of such obligations, or, if earlier in the Ordinary
Course of Business prior to the Closing.


 


(ii)                                 Notwithstanding
the foregoing, Purchaser shall not assume and the Assumed Liabilities shall not
include:


 


(A)                             Taxes,
as defined in SECTION 7.1(f)(i) of this Agreement, except as
specifically provided in SECTION 2.3;


 


(B)                               Obligations,
including notes, accrued expenses or other liability or debt (including,
without limitation, director’s fees) of the Seller or any Related Person of the
Seller;


 


(C)                               Any
salaries, commissions, wages, related payroll taxes, and accrued PTO/vacation
except as expressly reflected on the Final 


 


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Working Capital Statement, as well as benefits,
performance or incentive bonuses, severance payments and any other amounts due
to any employee of Seller, except as expressly reflected on the Final Working
Capital Statement;


 


(D)                              Any
capital lease obligations;


 


(E)                                Any
interest bearing debt, such as, without limitation, any credit lines or
business loans;


 


(F)                                Any
environmental Liability, obligations and commitments of Seller, including,
without limitation, Seller’s non-compliance with Environmental Health and
Safety Requirements, and all costs associated with the completion of
construction of the Thompson wastewater treatment facility, as well as any
Liability or obligation under the related Iowa Consent Agreement;


 


(G)                               Any
Liability associated with the investigation initiated by the Assistant US
Attorney for the United States of America on behalf of the Antitrust Division
of the Department of Justice (“DOJ”), for which GOE obtained a Subpoena to
testify before the grand jury issued out of the Eastern District of
Pennsylvania, any Liability associated with the Civil Investigative Demand
issued by the Attorney General of the State of Florida (“Investigative Demand”),
as well as all Liability associated with civil class action litigation against
GOE;


 


(H)                              Any
obligations under agreements, whether written or oral, with employees of Seller
or any other Persons that would provide them cash or other compensation upon
consummation of the Contemplated Transactions, all of which agreements are
identified in EXHIBIT 2.1(c)(ii)(h); and


 


(I)                                   Transactional
Costs of Seller, as defined in SECTION 10.14 of this Agreement,
including any Greene Holcomb & Fisher’s fees for this transaction.


 


Section 2.2. POST CLOSING ADJUSTMENT TO PURCHASE
PRICE - WORKING CAPITAL ADJUSTMENT


 


The Purchase Price shall be increased or decreased by
the amount, if any, of the Closing Working Capital Adjustment.  The “Closing Working Capital Adjustment” is
the amount by which the Working Capital as of the Closing and as set forth on
the Final Working Capital Statement, is greater than or less than Twenty Five
Million Two Hundred Seventy Four Thousand and No/100 Dollars ($25,274,000.00)
(the “Threshold”).  Seller’s calculation
of the Threshold working capital, and the format for calculation thereof, shall
be set forth on EXHIBIT 2.2 hereto. 
The adjustment to Purchase Price shall be made after determination of
the Final Working Capital


 


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Statement, as defined in SECTION 2.2(d)(ii),
of Seller following Closing and in accordance with this SECTION 2.2.


 


(a)                                 Working
Capital.  “Working Capital,”  shall be defined as the adjusted sum of the net book value
of Accounts Receivable, Inventory, and Prepaid Expenses transferred to
Purchaser hereunder, less the net book value of the Assumed Liabilities, all as
set forth in the Final Working Capital Statement, all as calculated under the
method shown in EXHIBIT 2.2.


 


(b)                                Rules for
Computation.  The Final Working Capital Statement shall be prepared in accordance
with generally accepted accounting principles (“GAAP”), consistently applied,
using GOE’s past practices and specifically in accordance with the form and
methodology set forth in EXHIBIT 2.2


 


(c)                                 Projected
Working Capital Adjustment.  The “Projected
Working Capital Adjustment” shall be the difference between the Projected
Working Capital and that Threshold, as calculated within twenty (20) days after
the Closing.  Specifically, Purchaser
shall, in consultation with Tom Powell, review the Seller’s Accounts Receivable
aging report, Inventory extension report, and the Accounts Payable aging
report, and perform necessary testing of the sums reflected in such reports to
determine an estimate of the projected working capital as of the Closing (“Projected
Working Capital”), consistent with the methodology for determining the Closing
Working Capital Adjustment.  Purchaser
and Seller shall review any Projected Working Capital, based upon such
determination.  In the event that the
Parties agree that the Projected Working Capital exceeds the Threshold, then
the amount by which the Projecting Working Capital exceeds the Threshold shall
be paid by Purchaser to Seller within two (2) Business Days after such
determination and agreement (the amount of such payment hereinafter, the “Projected
Working Capital Adjustment”).


 


(d)                                Closing
Working Capital Adjustment.  The determination of the Closing Working
Capital Adjustment shall be made as follows:


 


(i)                                    During
the seventy-five (75) day period following the Closing, or as soon after the
Closing as is practicable, Purchaser, in cooperation with a representative
appointed by Seller, will prepare a draft of a “Working Capital Statement” as
of the Closing Date, setting forth the calculation of working capital
transferred to Purchaser hereunder. 
Seller shall notify Purchaser of their acceptance or rejection of the
Working Capital Statement within thirty (30) days of receipt of the Working
Capital Statement.


 


(ii)                                 Seller’s
failure to deliver notice of acceptance or rejection within the 30 day period
shall be deemed to constitute acceptance. Upon acceptance, whether in writing
or by passage of time, the Working Capital Statement shall become final and
binding upon the Parties (the “Final Working Capital Statement”).


 


7





















 


(iii)                             In
the event a Party rejects the Working Capital Statement, the Parties shall,
within 15 days (or another period as the Parties may agree) following the
notice (the “Resolution Period”), attempt to resolve their differences, and any
resolution by the Parties as to any disputed amounts shall be final, binding
and conclusive on the Parties.


 


(iv)                             If,
at the conclusion of the Resolution Period, there are any amounts remaining in
dispute as to the Working Capital Statement, then all amounts remaining in
dispute will be submitted to the accounting firm of Grant Thornton (the “Neutral Auditor”).  Each Party agrees to execute, if requested by
the Neutral Auditor, a reasonable engagement letter.  All fees and expenses relating to the work,
if any, to be performed by the Neutral Auditor, will be paid by the Party not
prevailing with respect to the calculation in dispute between Seller and
Purchaser as determined by the Neutral Auditor, such that the prevailing Party
is reimbursed for any fees and expenses incurred.  The Neutral Auditor will act as an arbitrator
to determine, based solely on the provisions of this section and the related
exhibits, only those issues still in dispute and only as to whether the amounts
were arrived at in accordance with this Agreement.  The Neutral Auditor’s determination must be
made within 30 days of its engagement, must be set forth in a written statement
delivered to Seller and the Purchaser and is final, binding and conclusive on
the Parties.


 


(v)                                Upon
resolution of any dispute, whether by acceptance, agreement or resolution
through the Neutral Auditor, the result shall be the Final Working Capital
Statement.


 


(e)                                 Adjustments.  The Closing Working Capital Adjustment, if
any, to Purchase Price shall be effected within two (2) Business Days
after the determination of the Final Working Capital Statement under SECTION 2.2(d),
with a payment, as applicable, by Seller or Purchaser to the other Party as
follows:


 


(i)                                    If
the Closing Working Capital, as reduced by any Projected Working Capital
Adjustment, equals the Threshold, the entire Post Closing Payment shall be paid
to Seller.


 


(ii)                                 If
the Closing Working Capital, as reduced by any Projected Working Capital
Adjustment, is less than the Threshold, the difference between the Closing
Working Capital (reduced by any Projected Working Capital Adjustment) and the
Threshold shall be retained by the Purchaser and the remainder, if any, of the
Post Closing Payment shall be paid to Seller (and if the Post Closing Payment
is inadequate to cover the difference, Seller shall pay to Purchaser any such
additional required amount).


 


(iii)                              If
the Closing Working Capital, as reduced by any Projected Working Capital
Adjustment, is greater than the Threshold, the Purchaser shall pay to Seller
the Post Closing Payment plus the amount by which the Closing


 


8





















 


Working Capital (as reduced by any Projected Working
Capital Adjustment) exceeds the Threshold.


 


Section 2.3.                                PRORATION OF TAXES


 


All general real estate and ad
valorem taxes applicable to the Land and Improvements shall be prorated payable
for 2008 on a calendar year basis, utilizing actual final tax bills, if
available prior to Closing.  If the tax
bills are not available, then such taxes shall be prorated on the basis of the
most currently available tax bills for the Land and Improvements and promptly
re-prorated upon the issuance of final bills, and any amounts due from any
party to the other shall be paid in cash at that time.   All general assessments shall be prorated as
of the Closing, with Seller being responsible for any installments of general
assessments which are due prior to the Closing Date and Purchaser being
responsible for any installments of general assessments which are due on or
after the Closing Date.  All special
assessments shall be paid by Seller prior to the Closing Date.


 


Section 2.4.                                ALLOCATION OF PURCHASE
PRICE.


 


The Purchase Price will be allocated on a mutually
agreed basis by the Parties among the Purchased Assets under the residual
method as described in Section 1060 of the Internal Revenue Code of 1986, as
amended (the “Code”) no later than seventy-five (75) days following the Closing
Date (an example of a calculation in accordance with the foregoing is attached
hereto as EXHIBIT 2.4).  Purchaser
and Seller further agree to report this transaction for all purposes, including
any Tax reporting, in accordance with the allocation and to attach the
applicable asset acquisition statement to their respective income tax returns
for the taxable year of reporting this transaction.


 


ARTICLE 3.          CONDUCT
AND TRANSACTION OF BUSINESS PRIOR TO CLOSING.


 


Section 3.1.                                ACCESS TO INFORMATION.


 


During the period between the date of this Agreement
and Closing, Seller shall give to Purchaser and its attorneys, accountants, or
other authorized representatives, all reasonable access respecting Seller’s
property, personnel, books, contracts, commitments, and records and shall
furnish to Purchaser during such period all information as Purchaser may
reasonably request. Purchaser shall have the right to conduct on site
inspections of the Business Premises, with prior approval of Seller, which
shall not be unreasonably withheld.


 


Section 3.2.                                RESTRICTIONS IN
OPERATION OF THE BUSINESS.


 


Seller represents and covenants that:


 


(a)                                 Employee
Obligations.  Seller has paid, and
will pay at or before Closing, or thereafter in the Ordinary Course of
Business, all obligations to or on behalf of Seller’s employees, including
payroll for all hours worked through the Closing, all sales commissions for
sales made through the Closing, all unused vacation, sick or other benefit pay,
and all health insurance premium payments or other insurance premium payments,
contributions or obligations, bonuses or additional compensation due to, or on
behalf of, its employees for services performed, or related to employment
occurring, prior to the Closing, except for the Assumed Liability as expressly
reflected in the Final Working Capital Statement.  Whether or not accrued or consistent with
Seller’s policies or past practice, all such


 


9





















 


compensation and benefits shall be deemed fully vested
upon Closing for purposes of this section.


 


(b)                                Preservation
of the Business.  Seller shall use
their best efforts to preserve their respective business organizations and
assets of the Business and not to impair relationships with customers and
others having business relations with the Business.


 


(c)                                 Operation
of the Business.  Seller will,
between the date of this Agreement and the Closing, conduct its business in the
Ordinary Course of Business and will not engage in any practice, or enter into
any contract outside the Ordinary Course of Business.  Without limiting the generality of the
foregoing, and except as expressly provided in this Agreement, between the date
of this Agreement and the Closing, the Seller will not take any action the
effect of which is to materially:


 


(i)                                     transfer
or convert any of the Purchased Assets 
directly or indirectly to the benefit of any Seller Party;


 


(ii)                                  redeem,
purchase or otherwise acquire its capital stock; or


 


(iii)                               diminish
the Purchased Assets to be transferred hereunder to the Purchaser.


 


Section 3.3.                                NO SOLICITATION OF
OTHER OFFERS.


 


(a)                                 No
Other Negotiations.  Other than as
expressly set forth in this Agreement (as, for example, the rights of Seller to
sell Millersburg assets, as provided under SECTION 1.2(d)), no
Seller Party will disclose, negotiate, arrange, agree or conclude any disposal
of ownership interests, or of any material assets, of Seller with any Person
other than the Purchaser without the prior written consent of Purchaser until
the Closing or termination of this Agreement (the “Lock-Out Period”) and,
further, that they shall have, prior to execution of this Agreement, terminated
all discussions which they may have entered into with any persons other than
the Purchaser relating to any such disposal; provided, that this SECTION 3.3(a) shall
not apply to Transactions regarding inventory of products, animals and feed
consumed and sold in the Ordinary Course of Business;


 


(b)                                No
Consideration of Other Offers.  For
the duration of the Lock-Out Period, and except for transactions in the
Ordinary Course of Business, no Seller will, except as expressly set forth in
this Agreement, initiate, accept or consider any proposals from any Person other
than the Purchaser for the acquisition of ownership interests in, or of any
material assets of, any Seller Party, and shall not, except as expressly
permitted under this Agreement, take any steps to prejudice the completion of
the Contemplated Transactions.


 


(c)                                 Superior
Proposal.  Notwithstanding anything
to the contrary in this Agreement, if:


 


10





















 


(i)                                    Seller
receives any contact from any Person to initiate discussions, or consider a
proposal related to the acquisition of ownership interests in or material
assets of, any Seller Party (an “Acquisition Proposal”), Seller shall
immediately disclose to Purchaser all of the material terms and conditions of
the Acquisition Proposal and the identity of the Person making the Acquisition
Proposal; and


 


(ii)                                the
Board of Managers of GOE determines that the Acquisition Proposal is a Superior
Proposal (after taking into account any written binding offer by Purchaser to
improve the terms of this Agreement in response to the Acquisition Proposal),
then GOE and its representatives may:


 


(iii)                             furnish
information with respect to GOE to the Person making the Acquisition Proposal
(and its representatives) pursuant to a customary confidentiality agreement;
and


 


(iv)                             participate
in discussions or negotiations with the Person making the Acquisition Proposal
(and its representatives) regarding the Acquisition Proposal.


 


(d)                                Recommendation
of this Agreement.  Except pursuant to SECTION 3.3(e) below,
Seller agrees that no Board nor any committee shall:


 


(i)                                    (A) withdraw
(or modify in a manner adverse to Purchaser), or propose to withdraw (or modify
in a manner adverse to Purchaser), the recommendation or declaration of
advisability by the Board of Managers or any committee of this Agreement or (B) recommend,
adopt or approve, or propose publicly to recommend, adopt or approve, any
Acquisition Proposal; or


 


(ii)                                 approve
or recommend, or propose to approve or recommend, or permit any Seller Party to
execute or enter into, any letter of intent, memorandum of understanding,
agreement in principle, merger agreement, acquisition agreement, option
agreement, joint venture agreement, partnership agreement or other similar
agreement constituting or related to any Acquisition Proposal (other than a
confidentiality agreement pursuant to SECTION 3.3(c).


 


(e)                                 Notwithstanding
anything in this Agreement to the contrary:


 


(i)                                    the
Board of Managers of GOE or any committee of the Board of Managers of GOE may,
as required by Law, and to the extent not in breach of this SECTION 3.3,
withdraw or modify its recommendation of this Agreement (a “Change of
Recommendation”), cancel or postpone any meeting of GOE members, and otherwise
communicate with the members of GOE as the Board of Managers or any committee as
necessary; and


 


11




















 


(ii)                                 in
response to a Superior Proposal that did not result from a breach of SECTION 3.3,
and where the Purchaser is not willing to agree to move forward with the
Contemplated Transaction on improved terms that render Purchaser’s proposal
superior to the Superior Proposal, the Board of Managers of GOE may recommend
that GOE terminate this Agreement pursuant to SECTION 5.3(f).  Concurrently with or after the termination,
Seller may enter into any letter of intent, memorandum of understanding,
agreement in principle, merger agreement, acquisition agreement, option
agreement, joint venture agreement, partnership agreement or other similar
agreement with respect to the Superior Proposal.


 


(f)                                   Superior
Proposal.  “Superior
Proposal” means an Acquisition Proposal on terms and conditions which the Board
of Managers of GOE determines in good faith are (considering such factors as
the Board of Managers determines, in good faith, appropriate, including the
likelihood of completion) are more favorable to GOE than those set forth in
this Agreement.


 


Section 3.4.                                TITLE EVIDENCE.


 


As evidence of title to the Owned Real Property and
for information purposes as to the Leased Real Property (as those terms are
defined in SECTION 7.1(j)(ii)), Seller shall cause to be prepared and
delivered to the Purchaser at Seller’s expense;


 


(a)                                 a
commitment or preliminary title report (“Title Commitment”) for the Real
Property (as defined in SECTION 7.1(j)(ii)), from First American
Title Insurance Company;


 


(b)                                copies
of all exception documents noted in such Title Commitments; and


 


(c)                                 copies
of surveys in Seller’s possession for the Owned Real Property and the Leased
Real Property;


 


(collectively, “Title Evidence”).


 


EXHIBIT 3.4 sets forth, according to exception
number, all issues and concerns relating to the exceptions listed in the Title
Commitments that Purchaser wants Seller to address prior to Closing.  All exceptions listed in the Title
Commitments, other than the exceptions set forth in EXHIBIT 3.4, are the
“Permitted Exceptions.”


 


Section 3.5.                                HART-SCOTT-RODINO ACT
FILINGS.


 


Each of the Seller and the Purchaser will file a
Notification And Report Form under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the “HSR Act”) with the Federal Trade
Commission (“FTC”) and with DO with respect to the Contemplated Transactions.
If either FTC or DOJ issues a subsequent request for information, Purchaser or
Seller shall: (a) comply fully with any FTC or DOJ requests for additional
information within the prescribed time periods for response; and (b) not
extend any waiting period under the HSR Act without the prior written consent
of the other party.  The filing fees paid
to the FTC and the DOJ in conjunction with any filing under the HSR Act (the “HSR
Fee”) shall be paid by the Purchaser.


 


12

















 


Section 3.6.                                NOTIFICATION OF CERTAIN
MATTERS.


 


The Seller and Purchaser agree to provide prompt
written notice to each other of, and to use their respective best efforts to
prevent or promptly remedy, any material failure on its part to comply with or
satisfy any covenant, condition or agreement, to be complied with or satisfied
by it under this Agreement; provided, however, that the delivery of any notice
pursuant to this SECTION 3.6 shall not be deemed to amend or
supplement any exhibit or schedule attached hereto, to prevent or cure any
misrepresentations, breach of warranty or any breach of covenant or to limit or
otherwise affect the remedies available to the Party receiving the notice.


 


Section 3.7.                                RISK OF LOSS.


 


Seller assumes all risk of destruction, loss, or
damage to the Purchased Assets due to fire, storm, or other casualty up to the
Closing. If any destruction, loss, or damage to the Purchased Assets is such
that the Business of Seller is interrupted, curtailed or materially affected
prior to the Closing, then the Party becoming aware of such destruction, loss
or damage shall provide the other Party hereto written notice.  Within ten (10) days of the receipt of
such notice, the Parties shall meet to discuss such destruction, loss, or
damage, and the availability of insurance to cover such destruction, loss or
damage.  Purchaser shall have the
following rights:


 


(a)                                 Rescission.  Rescind this Agreement, and all rights and
obligations of each of the Parties to each other Party shall terminate; or


 


(b)                                Assignment
of Benefits.  Proceed to Closing and
accept from Seller an assignment of all insurance proceeds payable in
connection with the destruction, loss or damage together with a reduction in
the Purchase Price equal to the amount of any deductible, co-insurance or
self-insurance retained by Seller.


 


Section 3.8.                                PUBLIC STATEMENTS.


 


Except as required by Law and as provided in SECTION 3.9,
no public release, announcement or other form of publicity or disclosure to any
third party concerning this Agreement or the Contemplated Transactions shall be
issued by any Party without the prior written consent of all other Parties;
provided, however, that: (a) Purchaser or Seller may contact material
customers, vendors and creditors in order to arrange for the smooth transition
of the Business to Purchaser and continuation of the Business following the
Closing and to obtain written consent to assign the Contracts to Purchaser; and
(b) Purchaser may announce the signing and completion of the transaction,
and GOE may, as required for compliance with GOE’s Securities and Exchange
Commissions (“SEC”) reporting obligations, disclose this Agreement and the
Contemplated Transactions in connection with the preparation and distribution
of the proxy statement to GOE’s members and solicitation of GOE member
approval, as further described in SECTION 3.10, and make necessary
filings as required for SEC reporting compliance.


 


Section 3.9.                                GOE AND MIDWEST MEMBER
APPROVAL.


 


GOE and Midwest, respectively, shall promptly after
the date of this Agreement give all required notices and take all action
necessary to (i) notify its members of a special meeting to seek approval
of the Contemplated Transactions and (ii) to mail to its members
information relevant to their vote, as required under applicable Law.  Subject to SECTION 3.3, the Board
of Managers of GOE and Midwest shall, respectively:


 


13

















 


(a)                                 promptly
and duly call, give notice of, convene and hold a special meeting of its
members, in the case of GOE, within 21 days after receipt of approval by the
SEC of the Proxy Statement to be distributed to GOE’s members for the purpose
of obtaining approval of the transactions contemplated under this Agreement;


 


(b)                                recommend
to its members approval of the Contemplated Transactions under this Agreement;
and


 


(c)                                 take
all commercially reasonable action to solicit and obtain member approval,
subject to SECTION 3.3.


 


Section 3.10.                         DISCLOSURE SCHEDULES; NOTICE
OF DEVELOPMENTS.


 


From and after the date of this Agreement until ten (10) days
prior to the Closing, Seller shall promptly notify Purchaser by written notice,
of any development causing a breach of any of the representations or warranties
set forth in SECTION 7.1. 
Purchaser shall have the remedies available to Purchaser under this
Agreement, which shall include, without limitation, termination of this
Agreement pursuant to SECTION 5.3(d) by reason of the
development.  Unless this Agreement is
terminated by Purchaser, as permitted by the foregoing provisions, the written
notice pursuant to this SECTION 3.10 shall amend the Disclosure
Schedules, to have qualified the representations and warranties contained under
SECTION 7.1.  Each Party
shall promptly provide the other Party with written notice of any set of facts
and circumstances that cause any of the representations and warranties of
either party to be false or inaccurate. 
Updates to the Merrill Datasite, as such term is defined in SECTION 4.2(m),
added for the first time after the date of this Agreement, shall constitute
written notice under this SECTION 3.10; provided, that upon
request, the party receiving notice shall be entitled to request and receive a
clarification as to the specific disclosures being amended under ARTICLE 7
hereof.


 


ARTICLE
4.                             CLOSING.


 


Section 4.1.                                CLOSING.


 


(a)                                 Closing
Date.  The closing of the
Contemplated Transactions (“Closing”) shall take place on the later of (i) December 31,
2008; (ii) five (5) Business Days after the expiration of the waiting
period for Hart-Scott-Rodino, (iii) five Business Days after GOE and
Midwest have obtained member approval under SECTION 3.10 for the
transaction, iv) a date following completion of an extension under SECTION 5.1(J),
or v) a date as shall be mutually agreed upon by the Parties in writing.  For purposes of the calculations reflected on
the Final Working Capital Statement, the Closing shall be deemed to be
effective at 11:59 p.m. on the date of Closing.  The transfer of title to the Purchased Assets
shall be effective immediately upon completion of the deliveries required
pursuant to this ARTICLE 4 and the satisfaction or waiver of the
conditions described in ARTICLE 5.


 


(b)                                Closing
Location.  The Closing shall take
place at or about 9:00 a.m. Central Standard Time or another place or time
as the Parties may agree.


 


14

















 


Section 4.2.                                DOCUMENTS TO BE
DELIVERED BY SELLER.


 


Seller agrees to deliver the following documents, in
form and substance reasonably satisfactory to the Parties and their respective
counsel, duly executed as appropriate, to Purchaser at the Closing:


 


(a)                                  Corporate
Documents.


 


(i)                                    Articles
of Incorporation or Articles of Organization, as the case may be, of each
Seller Party, certified by the Secretary of State of its state of incorporation
or organization;


 


(ii)                                 Certificates
of Existence or Good Standing, as applicable, from the each state in which an
individual Seller Party was formed or organized, dated no earlier than ten (10) days
prior to the Closing; and


 


(iii)                              Bylaws
or Operating Agreement, as the case may be, of each Seller Party certified by
such Seller Party’s secretary or manager, as the case may be; and


 


(iv)                             Certificates
of Existence or Good Standing of each Seller Party issued by the appropriate
governmental official of each state in which each Seller Party is registered as
a foreign corporation or limited liability company, as the case may be, dated
no earlier than ten (10) days prior to the Closing.


 


(b)                                Authorizing
Resolutions.  Certified copy of
resolutions of the shareholders and directors or the members and manager, as
the case may be, of each Seller Party, authorizing each Seller Party to enter
into this Agreement and to consummate the Contemplated Transactions;


 


(c)                                 Bill
of Sale.


 


Bill of Sale for the assignment and transfer
of the Purchased Assets in substantially the form of EXHIBIT 4.2(C);


 


(d)                                Assignments;
Consents.  Appropriate assignment
documents assigning Seller’s right, title and interest in the Receivables,
Intangible Property, Intellectual Property, Trade Rights, Licenses and Permits,
Franchises, Contracts and Contract Rights, Advertising Materials, Prepaid
Assets, Shares and Securities, and Other Assets including written consent to
the assignments, if required by the terms thereof, in substantially the form
prepared by Purchaser and submitted to Seller on or before December 1,
2008;


 


(i)                                    Consents
to the registration by Purchaser of each of the assumed names used by the Business
in form for filing in all jurisdictions where required by the nature of the
Business as prepared by Purchaser and submitted to Seller prior to Closing.


 


(ii)                                 Consents
by each contracting Party to the assignment by Seller, and the assumption by
Purchaser, of Seller’s obligations with respect to each of


 


15

















 


the Assumed Liabilities, in substantially the form
prepared by Purchaser and submitted to Seller on or before December 1,
2008;


 


(iii)                              Assignment
documents in a form reasonably acceptable to Purchaser, by all individuals or
entities who engaged in development efforts with respect to the Intellectual
Property;


 


(e)                                 Warranty
Deed.  General Warranty Deeds, in
recordable form, conveying the Land and the Improvements to Purchaser, free and
clear of all liens, claims and encumbrances except for the Permitted
Exceptions.


 


(f)                                   Title
Commitment.


 


A commitment for title insurance in accordance with SECTION 3.4,
issued by First American Title Insurance Company, with standard and general
printed exceptions (excluding only the Permitted Exceptions) deleted so as to
afford full extended form coverage, and including endorsements reasonably
requested by Purchaser.  Seller shall
have provided all documents requested by the title company.


 


(g)                                Motor
Vehicles.  Certificates of title for
all vehicles included in the Purchased Assets, duly endorsed for transfer to
Purchaser.


 


(h)                                Bring-down
Certificate.  Certificate of an
officer of Seller regarding representations and warranties as required under SECTION 5.1(a);


 


(i)                                    Opinion
of Counsel.  Opinion of counsel for
Seller as required under SECTION 5.1(b);


 


(j)                                    Release
of Liens.  Termination Statement,
Satisfaction, or Release, executed by the secured party and in form for filing
for every UCC-1 Financing Statement on file with any state or local filing
authority naming Seller as debtor party and claiming an interest in any of the
Purchased Assets.


 


(k)                                 Tax
Compliance.  Certification from the
appropriate government official(s) in each state in which the Purchased
Assets are located that Seller has complied with its obligations relating to
sales and use taxes, that no liens have been filed with respect to any such
taxes, and that Purchaser is not required to withhold any portion of the Purchase
Price to pay such taxes;


 


(l)                                    Foreign
Person Certificate.  Seller shall
provide a certificate, 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;


 


(m)                              Merrill
DataSite Database.  Seller shall
provide to Purchaser a full and complete copy of the Merrill DataSite Database
for the “Tomcat 2008” Project the (“Merrill Datasite”), as made available to
Purchaser in its due diligence process, in a form accessible and readable by
Purchaser;


 


16

















 


(n)                                Agreements
with Potential Acquirers.  Seller
shall deliver copies of all confidentiality and nondisclosure agreements
executed with Potential Acquirers, all of which shall be assigned to Purchaser
at Closing; and


 


(o)                                Other
Documents.  Other documents as
Purchaser may reasonably request to carry out the transaction contemplated
under this Agreement, as prepared by Purchaser at their sole cost and expense.


 


Section 4.3.                                DOCUMENTS TO BE
DELIVERED BY PURCHASER.


 


Purchaser agrees to deliver the following documents,
in form and substance reasonably satisfactory to the Parties and their
respective counsel, duly executed as appropriate, to Seller at the Closing:


 


(a)                                 Authorizing
Resolutions.  A copy of the corporate
resolutions of the directors of Purchaser, authorizing Purchaser to enter into
this Agreement and to consummate the Contemplated Transactions;


 


(b)                                Payment.  Payment of the Purchase Price in the amount
and form as required by SECTION 2.1(a) hereof;


 


(c)                                 Bring-down
Certificate.  Certificate of an
officer of Purchaser regarding representations and warranties as required under
SECTION 5.2(a);


 


(d)                                Opinion
of Counsel.  Opinion of counsel for
the Purchaser as required under SECTION 5.2(b);


 


(e)                                 Other
Documents.  Other documents as Seller
may reasonably request to carry out the transaction contemplated under this
Agreement, as prepared by Seller at their sole cost or expense.


 


ARTICLE 5.                             CONDITIONS OF CLOSING; ABANDONMENT OF
TRANSACTION.


 


Section 5.1.                                CONDITIONS TO
OBLIGATION OF PURCHASER TO PROCEED ON THE CLOSING.


 


The obligations of Purchaser to proceed on the Closing
shall be subject to the satisfaction, on or prior to the Closing, of all of the
following conditions, any of which may be waived by Purchaser in its sole
discretion:


 


(a)                                 Accuracy
of Representations; Certificate of Officer. 
The representations and warranties of Seller contained in this Agreement
are true in all material respects both at the signing of this Agreement and as
of the Closing, and Seller has fulfilled and performed all obligations and
complied with all covenants and conditions prior to or as of the Closing.
Seller shall have delivered to Purchaser certificates in form and substance
satisfactory to Purchaser dated as of the Closing and executed by an officer of
Seller to all such effects.


 


(b)                                Opinion
of Counsel.  Purchaser shall have
received a duly executed opinion letter from Stoel Rives LLP, legal counsel for
the Seller, in the form of EXHIBIT 5.1(b),


 


17

















 


dated as of the Closing, in form and substance
reasonably satisfactory to Purchaser and its counsel, to the effect that:


 


(i)                                    Each
Seller Party is validly existing under the Laws of its state of organization or
incorporation and possesses all necessary power to enter into this Agreement
and consummate the Contemplated Transactions.


 


(ii)                                 This
Agreement and all Ancillary Documents have been duly and validly authorized,
executed, and delivered by Seller, constitute the legal, valid and binding
obligations of each Seller Party and are enforceable in accordance with their
respective terms, except as limited by bankruptcy and insolvency Laws, by other
Laws affecting the rights of creditors generally and by general principles of
equity.


 


(iii)                              Neither
the execution and delivery of this Agreement, nor the consummation of the
Contemplated Transactions, will constitute a violation of either the Articles
of Incorporation or Bylaws, or the Articles of Organization or Operating
Agreement of any Seller Party.


 


In giving the
opinion, counsel may rely, as to matters of fact, upon certificates of public
officials and certificates of officers of Seller.


 


(c)                                 Release
of Secured Claims and Mortgages. 
Seller shall have obtained full and complete releases of all liens,
security interests, or other encumbrances upon the Purchased Assets except for
those arising solely from the Assumed Liabilities.


 


(d)                                Required
Consents.


 


All required consents shall have been obtained from governmental
agencies whose approval is required to consummate the Contemplated
Transactions, and from each Person whose consent is required to consummate the
Contemplated Transactions.


 


(e)                                 Change
of Name; Use of Tradenames.  Seller
shall have prepared and submit to Purchaser for filing, or Seller shall prepare
and file, effective as of Closing, suitable documents amending Seller’s
Articles of Incorporation or Organization to change Seller’s name to a name
dissimilar to its present name and any other trade name transferred pursuant to
this Agreement.  Seller shall have taken
all requisite actions to permit Purchaser to file certificates of assumed names
for, and to use the tradename “Golden Oval Eggs,” and each tradename used by
Seller, in all states where the failure to register and possess the right to
use the names would have an adverse effect on the Business.


 


(f)                                   Delivery
of Documents.  Seller shall have
delivered all documents required to be delivered at Closing pursuant to SECTION 4.2.


 


(g)                                Litigation
Affecting Closing.


 


No suit, action or other proceeding shall be pending or threatened by
or before any court or governmental agency in which it is sought to restrain or
prohibit or to


 


18

















 


obtain damages or other relief in connection with this Agreement or the
consummation of the Contemplated Transaction, and no investigation likely to
eventuate in any such suit, action or proceeding seeking to restrain or
prohibit or to obtain damages or other relief in connection with this Agreement
shall be pending or threatened.


 


(h)                                Legislation.  Between signing of this Agreement and
Closing, no statute, rule, regulation, or order shall have been enacted,
entered, or deemed applicable by any domestic or foreign government or
governmental or administrative agency or court which would make the transaction
contemplated by this Agreement illegal or otherwise have materially and
adversely affected the Purchased Assets or the use and operation of the
Business in the hands of Purchaser.


 


(i)                                    Material
Adverse Change.  The Purchaser shall
not become aware of an event, change, or occurrence which, individually or
together with any other event, change or occurrence, has or may be reasonably
likely to have a material adverse effect on the financial position, Business,
Land, Improvements,, Purchased Assets, results of operations or value of the
Seller’s Business, and no event has occurred or circumstances exist that may
result in a material adverse effect.


 


(j)                                    Employment.


 


Not less than twenty (20) Business Days prior to the Closing, Seller
shall have permitted Purchaser reasonable access to Seller’s employees during
regular business hours for purposes of interviewing, offering employment,
conducting pre-employment drug testing, completing pre-employment documents and
explaining Purchaser’s employee rules and benefits.  In the event more than ten percent (10%) of
Seller’s employees fail any such pre-employment screening, Purchaser shall have
the right to delay the Closing for up to thirty (30) days in order to put
sufficient staffing in place to run the Business after Closing.


 


(k)                                 United
Mills.  Purchaser shall obtain
assurances, to its reasonable satisfaction, which includes an executed
operating agreement that sets forth these terms, that it will obtain the
benefits of Seller’s ownership interest in and to United Mills, including,
without limitation, documentation sufficient to demonstrate Purchaser’s rights,
after Closing, to gain the benefit of the grind, mix and delivery commitments
for animal feed from the United Mills feed mill at cost, and otherwise on the
same terms as currently maintained by Seller.


 


(l)                                    Grain
Handling Contracts and Egg Supply Agreements.  Purchaser shall have entered into grain
contracts providing for the delivery of grain to the Renville, Minnesota and
the Thompson, Iowa facilities, as well as a contract with MoArk ensuring the
supply of shell eggs for the Neosho and California facilities to be effective
as of and after the Closing, all in a form reasonably satisfactory to
Purchaser.


 


19

















 


(m)                              Title
Evidence.  Purchaser shall have
received the Title Evidence, and shall have received revised copies of the
Title Commitments, containing only the Permitted Exceptions.


 


(n)                                HSR
Act.  The waiting period required by
the HSR Act shall have expired or terminated.


 


(o)                                Completion
of Thompson Treatment Facility and Certain Environmental and Safety
Improvements.  Seller
shall have substantially completed the construction of the wastewater treatment
facility improvements, excluding only final grading, in Thompson, Iowa, to the
satisfaction of Purchaser, as required under (but notwithstanding the dates
specified in) Seller’s Consent Agreement with the State of Iowa (the “Thompson
Facility Improvements”).  Seller shall
have also substantially completed the environmental and safety activities
described in EXHIBIT 5.1(O) hereto (the “Safety/Environmental Improvements”).


 


Section 5.2.                                CONDITIONS TO
OBLIGATIONS OF SELLER TO PROCEED ON THE CLOSING.


 


The obligation of Seller to proceed on the Closing
shall be subject to the satisfaction, on or prior to the Closing, of all of the
following conditions, any of which may be waived by Seller in their sole discretion:


 


(a)                                 Accuracy
of Representations; Certificate of Officer. 
The representations and warranties of Purchaser contained in this
Agreement are true in all material respects both at signing and as of the
Closing and Purchaser has fulfilled and performed all obligations and complied
with all covenants and conditions prior to or as of the Closing. Purchaser
shall have delivered to Seller a certificate in form and substance satisfactory
to Seller dated as of the Closing and executed by an officer of Purchaser to
all such effects.


 


(b)                                Opinion
of Counsel.  Seller shall have
received a duly executed opinion letter from Purchaser’s counsel, dated as of
the Closing, in form and substance reasonably satisfactory to Seller and its
counsel, to the effect that:


 


(i)                                    Purchaser
is a corporation validly existing and in good standing under the Laws of the
State of Iowa, and has all necessary corporate power to enter into this
Agreement and consummate the Contemplated Transactions.


 


(ii)                                 This
Agreement and all Ancillary Documents have been duly and validly authorized,
executed, and delivered by Purchaser, constitute the legal, valid and binding
obligations of Purchaser, and are enforceable in accordance with their terms,
except as limited by bankruptcy and insolvency Laws, by other Laws affecting
the rights of creditors generally and by general principles of equity.


 


20

















 


(iii)                              Neither
the execution nor delivery of this Agreement, nor the consummation of the
Contemplated Transactions, will constitute a violation of Purchaser’s Articles
of Incorporation or Bylaws.


 


In giving the
opinion, counsel may rely, as to matters of fact, upon certificates of public
officials.


 


(c)                                 Delivery
of Documents.  Purchaser shall have
delivered all documents to be delivered at Closing pursuant to SECTION 4.3
hereof.


 


(d)                                Legislation.  No statute, rule, regulation, or order shall
have been enacted, entered, or deemed applicable by any domestic or foreign
government or governmental or administrative agency or court which would make
the transaction contemplated by this Agreement illegal.


 


(e)                                 HSR
Act.  The waiting period required by
the HSR Act shall have expired or terminated.


 


(f)                                   GOE
and Midwest Member Approval.  The
transactions contemplated in this Agreement shall have been approved by the
members of GOE and Midwest at special meetings duly called and held for such
purposes in accordance with applicable Law and, respectively, GOE’s and Midwest’s
governing documents.


 


Section 5.3.                                TERMINATION OF AGREEMENT.


 


This Agreement and the Contemplated Transactions may
be terminated at or prior to the Closing as follows:


 


(a)                                 Mutual Agreement.  By the mutual written agreement of Sellers
and Purchaser;


 


(b)                                Expiration Date.  By Seller or Purchaser if the Closing shall
not have taken place on or before April 1, 2009 (or such later date as is
agreed upon, in writing, by Purchaser and Seller); provided, however, that if
the terminating party has failed to fulfill any obligation under this Agreement
or is in breach of any representation or warranty under this Agreement, and
such failure or breach was the cause of or resulted in the failure of the
Closing to occur on or before that date, then this Agreement shall be
considered a termination for breach by the non-terminating Party under SECTION 5.3(d);


 


(c)                                 Government Order.  By Seller or Purchaser if any court of
competent jurisdiction or other governmental authority shall have issued an
order, decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the consummation of the Contemplated Transactions;


 


(d)                                Breach.  By Seller or Purchaser, 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 20 Business Days after
the date written notice of the breach is


 


21

















 


delivered by the Party claiming the default or breach
to the Party in default or breach; or


 


(e)                                 Material Adverse Effect.  By Purchaser 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.


 


(f)                                   Superior
Proposal. 
By GOE, to the extent permitted by SECTION 3.3(d), if at any
time before the Closing all of the following conditions are met:


 


(i)                                    the
GOE Board of Managers recommends to the members of GOE that they enter into an
agreement with respect to a Superior Proposal, and Sellers notify Purchaser in
writing that they intend to enter into an agreement, attaching a summary of the
material terms of the proposal; and


 


(ii)                                 Purchaser
does not make, within 30 Business Days after the receipt of GOE’s written
notification of its intention to enter into a binding agreement for a Superior
Proposal, a written offer that is at least as favorable as the Superior
Proposal.  To the extent the 30-day
period in this SECTION 5.3(f) extends beyond the Termination
Date determined under other sections of this Agreement, the Termination Date
shall be extended until the end of the 30 day period in this SECTION 5.3(f).


 


(g)                                Member
Approval.  By GOE, if GOE does not
receive the requisite member approval after special meeting duly called and held
for approving the Agreement and the Contemplated Transactions in accordance
with applicable Law GOE’s governing documents.


 


(h)                                Notice
of Termination. 
Any termination pursuant to this SECTION 5.3 (other than a
termination pursuant to SECTION 5.3(a)) shall be effected by
written notice from the terminating party to the other parties, which notice
shall specify the section pursuant to which this Agreement is being
terminated.


 


Section 5.4.                                CONSEQUENCES OF
TERMINATION.


 


In the event of termination of this Agreement pursuant to SECTION 5.3(a) or
SECTION 5.3(c), neither Party shall have any other liability to the
other Party under this Agreement.  SECTION 5.5
of this Agreement sets forth the exclusive remedies for any termination of this
Agreement under SECTION 5.3 prior to Closing.  In any event, after any termination under
this ARTICLE 5, and conditioned upon full compliance with the terms
of SECTION 5.5., including the making of any payments required therein,
the Parties shall have no further liability or obligations under this
Agreement, except that all obligations of the Parties under the following
sections shall survive any such termination: SECTION 5.5,  3.9
(Public Statements), 10.14 (Expenses), 10.15 (Publicity), and 10.2
(Applicable Law; Jurisdiction).


 


Section 5.5.                                REMEDY UPON
TERMINATION.


 


In the event this Agreement is terminated by either party under this ARTICLE 5,
the following shall be the exclusive remedies for such termination:


 


22

















 


(a)                                 Seller
Remedies.  In the event this
Agreement is terminated by Seller pursuant to a breach by Purchaser under SECTION 5.3(d) [Breach],
Purchaser shall pay to Seller, as Seller’s sole and exclusive remedy under this
Agreement, all of Seller’s direct out of pocket expenses incurred in pursuit of
the Contemplated Transactions, subject to an aggregate maximum sum of
$500,000.00.


 


(b)                                Purchaser Remedies.  In the event this Agreement is terminated:


 


(i)                                    by
Purchaser due to a breach by Seller under SECTION 5.3(d) [Breach],
or


 


(ii)                                 by
Seller under SECTION 5.3(e) [Material Adverse Effect], or


 


(iii)                              by
Seller under SECTION 5.3(f) [Superior Proposal],


 


GOE shall pay to Purchaser, as Purchaser’s sole and exclusive remedy
under this Agreement (except for any payment that may be due to Purchaser under
SECTION 5.5(c)) an amount equal to its direct out of pocket
expenses incurred in pursuit of the Contemplated Transactions, subject to an
aggregate maximum sum of $500,000.00.


 


(c)                                 Topping/Termination
Fee.  In the event of a termination
of this Agreement (except for a Excluded Termination as defined in this SECTION 5.5(c))
and within six (6) months after the date of such termination, either
Seller or one or more Seller Party signs a letter of intent or other agreement
relating to the acquisition of a material portion of the Purchased Assets,
shares, membership interests or Business with any Person who made an
Acquisition Proposal prior to such termination, or with any Potential Acquirer,
as defined under SECTION 7.1(s) and such transaction is
ultimately consummated, then, immediately on the closing of such transaction,
GOE shall pay the Purchaser an additional payment of:


 


(i)                                    Four
Million Dollars ($4,000,000.00) in the event that the purchase price in such
transaction exceeds the dollar amount of the payment to Seller under SECTION 2.1,
reduced by any payment previously made under SECTION 5.5(b), or


 


(ii)                                 Five
Hundred Thousand Dollars ($500,000.00) in the event that the purchase price in
such transaction is less than the dollar amount of the payment to Seller under SECTION 2.1,
reduced by any payment previously made under SECTION 5.5(b).


 


Excluded Termination means a termination by Seller under SECTION 5.3(d) [Breach]
resulting from an uncured breach by Purchaser, or a termination of this
Agreement by Purchaser under SECTION 5.3(b) [Expiration Date],
a termination by mutual agreement under SECTION 5.3(a) [Mutual
Agreement], or a termination under SECTION 5.3(c) [Government
Order].


 


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ARTICLE 6.                             POST-CLOSING OBLIGATIONS.


 


Section 6.1.                                FURTHER DOCUMENTS AND
ASSURANCES.


 


At any time and from time to time after the Closing,
each Party shall, upon request of another Party, execute, acknowledge, and
deliver all such further and other assurances and documents, and will take such
action consistent with the terms of this Agreement, as may be reasonably
required to carry out the Contemplated Transactions and to permit each Party to
enjoy its rights and benefits hereunder. If requested by Purchaser, Seller
further agrees to prosecute or otherwise enforce in its own name for the
benefit of Purchaser any claim, right, or benefit transferred by this Agreement
that may require prosecution or enforcement in the names of Seller. Any
prosecution or enforcement of claims, rights, or benefits under this provision
shall be solely at Purchaser’s expense, unless the prosecution or enforcement
is made necessary by a breach of this Agreement on the part of Seller.


 


Section 6.2.                                COLLECTION OF
RECEIVABLES.


 


Seller shall assist Purchaser after the Closing in the
collection of Receivables generated by the Business.  All payments received by the Seller after the
Closing in payment of such Receivables shall be forwarded by Seller to Purchaser.  All amounts received by Purchaser after
Closing shall be applied to the oldest outstanding Receivable unless the
customer shall specifically identify a different application.  Purchaser shall promptly notify Seller of any
issue or defense raised by any customer with respect to an outstanding
Receivable and allow Seller access to the customer for purposes of resolving
the same.  With respect to each account
for which Seller undertakes assistance in collection activity, Seller shall
consult with Purchaser and shall use their best reasonable efforts not to harm
the business relationship between Purchaser and such customer.


 


Section 6.3.                                ACCESS TO INFORMATION.


 


Seller may need access to information relating to the
Business acquired by Purchaser after Closing Date including financial and accounting
information for the preparation of tax returns, Form K-1’s, payments and
filings related to payroll taxes, and final W-2’s, and information for workers
compensation audits, payroll audits, insurance audits, distributor allowances,
royalty payments, customer deductions, sales commissions, incentive pay
calculations for Employees, and supplier rebates.  Seller acknowledges Purchaser’s need to
maintain biosecurity at the facilities and confidentiality of the business
operation information.  Recognizing the
concerns of Purchaser and Seller, the Parties agree that upon reasonable
request, Purchaser shall, at or after Closing, provide Seller, at Seller’s
cost, requested information about the Business reasonably necessary to
determine any matter relating to or arising during the period ending on or
before the Closing.  If Purchaser cannot
or chooses not to provide the requested information, then upon reasonable
request by Seller, Purchaser may provide Seller or its agents access to
necessary books and records of the Business, subject to reasonable
restrictions, including biosecurity, confidentiality and procedures to avoid
interference with Purchaser’s operation, established by Purchaser.  If GOE desires records, GOE shall notify
Purchaser, and Purchaser shall provide copies to the Sellers, or make available
access to such document to Seller upon Seller agreeing to pay for all costs
associated with collecting such documents, including, without limitation, the
reasonable duplication expenses; provided, however, Purchaser agrees to use
commercially reasonable efforts not to destroy any books and records received
from Seller under this Agreement during the one year period following the
Closing Date.  Notwithstanding anything


 


24

















 


contained in this Agreement, the parties agree that
GOE is subject to a subpoena and an ongoing investigation by the DOJ (the “Subpoena”)
and an investigation by the Attorney General of the State of Florida (the “Investigation
Demand”).  Seller shall be solely and
exclusively responsible for all obligations under the Subpoena and the
Investigation Demand, including any ongoing obligations to produce documents,
preservation of documents Seller deems applicable, and any other obligations
related to the Subpoena.


 


Section 6.4.                                SELLER’S EMPLOYEES.


 


Purchaser anticipates offering employment effective as
of the Closing to a substantial portion of the employees of Seller (“Seller’s
Employees”) on terms and conditions, including base salary, which is substantially
similar to Seller’s Employees’ current base salary, and benefits which are
substantially similar to similarly situated employees of Purchaser.  Purchaser shall make such offers on or before
the Closing Date, and conditioned upon the successful completion of the
Closing.  Seller makes no representation
as to whether Employees will accept employment with Purchaser, but Employees
who accept employment with Purchaser shall be known as the “Hired Employees”.  Purchaser reserves the right to implement all
of its normal pre-hiring conditions and to offer employment on such terms and
conditions as it determines in its sole discretion.  No provision in this Agreement shall create
any third party beneficiary or other right in any Person for any reason, including,
without limitation, in respect of continued, resumed or new employment with
Purchaser or Seller.  The Seller shall
remain liable for all Liabilities to Seller’s employees for the period prior to
and through the completion of the Closing including those arising under Seller’s
benefit and compensation plans, except as expressly reflected in the Final
Working Capital Statement.


 


Subject to the Closing occurring, Seller shall cease
to employ Seller’s Employees effective as of the Closing Date, and the Purchaser
shall then immediately become the employer of the Hired Employees.  Purchaser agrees that it will offer
employment to at least 74 of Seller’s employees at the Renville location, at
least 158 of Seller’s employees at the Thompson location, at least 62 of Seller’s
employees at the California locations, and at least 56 of Seller’s employees at
the Abbeville location.  Purchaser shall
cause each Hired Employee and his or her spouse and eligible dependents to be
covered or offered coverage, effective immediately upon the Closing Date, under
a group health plan maintained by Purchaser or an Affiliate of Purchaser that
provides medical, prescription drugs, vision and dental benefits.


 


Purchaser shall take such actions as are necessary to
cause the employee benefit plans and compensation programs maintained by
Purchaser to grant credit for each Hired Employee’s service with Seller for all
purposes under such plans and programs, including, but not limited to for
purposes of eligibility, benefit accrual (other than benefit accruals under a
defined benefit pension plan), contribution rates and for purposes of
determining the amount of, and entitlement to, benefits.


 


ARTICLE 7.                             REPRESENTATIONS AND WARRANTIES.


 


Section 7.1.                                REPRESENTATIONS AND
WARRANTIES OF SELLER.


 


Except as specifically set forth on the Disclosure
Schedule attached as EXHIBIT 7.1, each Seller Party jointly and
severally makes the following representations and warranties to Purchaser with
the intention that Purchaser may rely upon the same and acknowledge that the
same shall be true 


 


25

















 


on the date hereof (unless specified as being true
only at Closing) and as of the Closing (as if made at the Closing).  The Disclosure Schedule shall be arranged in
separate schedules corresponding to the numbering of this SECTION 7.1.


 


(a)                                  Organization.  GOE is a limited liability company duly
organized, validly existing and in good standing under the Laws of the State of
Delaware, and has all requisite power and authority, and possesses all
necessary licenses, permits, franchises and approvals necessary to own and
lease its properties and assets and to conduct the business in which it is
presently engaged.   GOEMCA is a corporation
duly organized, validly existing and in good standing under the Laws of the
state of Delaware, and has all requisite power and authority, corporate and
otherwise, and possesses all necessary government licenses, permits, franchises
and approvals necessary to own and lease its properties and assets and to
conduct the business in which it is presently engaged.  GOECA is a limited partnership duly
organized, validly existing and in good standing under the Laws of the state of
Delaware, and has all requisite power and authority, corporate and otherwise,
and possesses all necessary government licenses, permits, franchises and
approvals necessary, to own and lease its properties and assets and to conduct
the business in which it is presently engaged. 
GOECA is a limited partnership duly organized, validly existing and in
good standing under the Laws of the state of Delaware, and has all requisite
power and authority, corporate and otherwise, and possesses all necessary
government licenses, permits, franchises and approvals necessary to own and
lease its properties and assets and to conduct the business in which it is
presently engaged.  Midwest is a
cooperative association organized under Chapter 501 of the Iowa Code, is duly
organized, validly existing and in good standing under the Laws of the state of
Iowa, and has all requisite power and authority, corporate and otherwise, and
possesses all necessary government licenses, permits, franchises and approvals
necessary to own and lease its properties and assets and to conduct the
business in which it is presently engage.


 


(b)                                 Qualification.  Each Seller Party is qualified to do business
and in good standing as a foreign corporation in all states in which
qualification is required by the nature of its business and in which the
failure to so qualify and be in good standing would have a material adverse
effect on the Business. Each Seller Party has identified all such states on SCHEDULE
7.1(b).


 


 (c)                               Corporate
Authority.  This Agreement and all
Ancillary Documents constitute the legal, valid, and binding obligation of each
Seller Party in accordance with the terms hereof and thereof.  The
execution, delivery, and performance of this Agreement and the Ancillary
Documents on behalf of each Seller Party has been duly authorized by, as
applicable, the Board of Managers, Board of Directors, or the General Partner
of each, and as of the Closing all necessary shareholder or member approval
shall have been obtained for each Seller Party for the Contemplated
Transactions.


 


26
















 


(d)                                 Financial
Statements.


 


(i)                                     GOE
has delivered to Purchaser or otherwise made available to Purchaser through
filings with the SEC the audited consolidated balance sheets and the related
consolidated statements of earnings, of member’s equity and of cash flows of
GOE and its consolidated subsidiaries, for the fiscal years ended August 31,
2005, August 31, 2006, and August 31, 2007 and the unaudited
consolidated balance sheet for the quarter ended May 31, 2008 (including
the notes thereto), accompanied by the report of Moore Stephens Frost,
independent registered public accounting firm (collectively, the “Business
Financial Statements”);


 


(ii)                                  Except
as set forth in PARAGRAPH 7.1(d)(ii) of the Disclosure Schedule:


 


(A)                      the Business
Financial Statements (in each case including the notes to the Business
Financial Statements) were prepared from the books and records of Seller and in
accordance with GAAP, consistently applied, and include the “Statement of
Changes in Financial Condition” as required by GAAP; and


 


(B)                        the
Business Financial Statements fairly and accurately present, in all respects,
the financial activity of the Business and the results of operations of Seller,
as well as the assets and Liabilities and results of operations of Seller as of
the respective dates thereof and for the periods then ended and do not exclude
any information the omission of which would be misleading.  During the periods represented by the
Business Financial Statements, Seller has made no change in any of its
accounting policies or practices.


 


(e)                                  Books
and Records.  Except as set forth on SCHEDULE
7.1(e), Seller’s books of account and records (including customer order
files, employment records, and sales, production, and manufacturing records)
are complete, true, and correct in all material respects.


 


(f)                                    Tax
Reports, Returns, and Payment.


 


(i)                                     Seller
has accurately prepared and timely filed all federal and applicable state, and
local, tax or assessment reports and returns of every kind required to be filed
by Seller with relation to the Business, including without limitation, income
tax, sales and use tax, real estate tax, personal property tax, payroll and
employee withholding tax, and unemployment tax, and has duly paid all taxes and
other charges (including interest and penalties) due to or claimed to be due by
any taxing authorities (“Taxes”). Seller is not the beneficiary of any
extension of time in which to file Tax Returns. 
No material claim has ever been made by an authority in a jurisdiction
where Seller does not file Tax Returns that it is or may be subject to taxation
by that jurisdiction. There are no tax liens for taxes upon any property or
assets of Seller.  Where required, timely
estimated payments or installment payments of Tax Liabilities have been made to
all 


 


27

















 


governmental agencies in amounts sufficient to avoid underpayment
penalties or late payment penalties applicable thereto.


 


(ii)                                  Seller
has promptly paid and is not delinquent with respect to payment of any Taxes,
duties, and charges based on the income, purchases, sales, business, payroll,
real estate, capital stock or surplus, or assets of Seller.


 


(iii)                               Seller
has withheld and paid all Taxes required to have been withheld and paid in
connection with any amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or other third party.


 


(iv)                              There
are no disputes with any governing authority as to Taxes payable by or with
respect to Seller.


 


(v)                                 There
are no audits by any governing authority presently pending as to Taxes payable
by or with respect to Seller and no such audits have been performed within the
two (2) most recent years.


 


 (g)                              Title to Assets.  Except as set forth in PARAGRAPH 7.1(g) of
the Disclosure Schedule, Seller holds title to the Purchased Assets free and
clear of all liens, claims, encumbrances, licenses or leases, (subject only to
the Permitted Exceptions) and Purchaser shall have the right to take possession
of the Purchased Assets immediately after Closing.


 


(h)                                 Purchased
Assets.  Except as set forth on PARAGRAPH
7.1(h) of the Disclosure Schedule, the Purchased Assets include all of
the assets used by Seller in the conduct of the Business, respectively.


 


(i)                                     Real
Property.


 


(i)                                     Seller
is the owner of the Land and the Improvements.


 


(ii)                                  Paragraph
7.1(i)(ii) of the Disclosure Schedule sets forth the address and legal
description of each parcel of real property owned by Seller (and comprising “Land”,
hereinafter “Owned Real Property”) as well as the address and legal description
of each parcel of leased real property (the “Leased Real Property”) used in, or
related to, the Business (the Owned Real Property and the Leased Real Property
are hereinafter collectively, the “Real Property”) and such Real Property comprises
all of the real property used or proposed to be used in, or related to, the
Business.


 


(iii)                               Paragraph
7.1(i)(ii) of the Disclosure Schedule also sets forth a true and complete
list of all leases, subleases, licenses, concessions and other agreements,
written or oral (including all amendments, extensions, renewals, guaranties and
other agreements related thereto, collectively, the “Leases”) for each parcel
of Leased Real Property.  The Seller
Parties have provided to the Purchaser a copy of all of the Leases, and in the
case of any oral Lease, a written summary of the materials and terms thereof.


 


28

















 


With respect to each such Lease:


 


(A)                              such
Lease is legal, valid, binding, enforceable and in full force and effect;


 


(B)                                Sellers’
possession and quiet enjoyment of the Leased Real Property under such Lease has
not been disturbed and there are no disputes with respect to such Lease;


 


(C)                                neither
Seller nor any other party to the Lease is in breach or default under such
Lease, and no event has occurred or circumstance exists which, with the
delivery of notice, the passage of time or both, would constitute such a breach
or default, or permit the termination, modification or acceleration of rent
under such Lease;


 


(D)                               no
security deposit or portion thereof deposited with respect to such Lease has
been applied in respect of a breach or default under such Lease which has not
been re-deposited in full;


 


(E)                                 Sellers
have not subleased, licensed or otherwise granted any Person the right to use
or occupy such Leased Real Property or any portion thereof;


 


(F)                                 Sellers
have not collaterally assigned or granted any other lien, security interest,
mortgage or any other encumbrance in such Lease or any interest therein; and


 


(G)                                there
are no liens, security interests, mortgages or any other encumbrances on the
estate or interest created by such Lease, except for the Permitted Exceptions.


 


(iv)                              The
Owned Real Property and the Leased Real Property (collectively, the “Real
Property”) comprise all of the Real Property used or proposed to be used in, or
related to, the Business.


 


(v)                                 Except
as disclosed in Paragraph 7.1(i)(v) of the Disclosure Schedule,
Seller has, or at Closing will have (A) good, valid and marketable fee
title to the Owned Real Property; and (B) valid leasehold interests in the
Leased Real Property, in each case, free and clear of all encumbrances, except
for the Permitted Exceptions.


 


(vi)                              To
the Knowledge of Seller, all buildings, structures, fixtures, building systems
and equipment, and all components thereof, including the roof, foundation,
load-bearing walls and other structural elements thereof, heating, ventilation,
air conditioning, mechanical, electrical, plumbing and other building systems,
environmental control, remediation and abatement


 


29

















 


systems, sewer, storm and waste water systems, irrigation and other
water distribution systems, parking facilities, fire protection, security and
surveillance systems, and telecommunications, computer, wiring and cable
installations, included in the Real Property are in good condition and repair,
ordinary wear and tear excepted, and sufficient for the operation of the
Business.


 


(vii)                           The
Real Property is in complete compliance with all applicable building, zoning,
subdivision, health and safety and other land use Laws, including The Americans
with Disabilities Act of 1990, as amended, and all insurance requirements
affecting the Real Property (collectively, the “Real Property Laws”), and the
current use and occupancy of the Real Property and the operation of Seller’s
Business thereon does not violate any Real Property Laws.  Seller has not received any notice of
violation of any Real Property Law, and to Seller’s Knowledge, there is no
basis for the issuance of any such notice.


 


(viii)                        With
respect to the Real Property, all certificates of occupancy, permits, licenses,
approvals and authorizations (collectively, the “Real Property Permits”) of all
governmental authorities, board of fire underwriters, association or any other
entity having jurisdiction over the Real Property, which are required to use or
occupy the Real Property, or operate Seller’s Business as currently conducted
thereon, have been issued and are in full force and effect. Paragraph 7.1(i)(viii) of
the Disclosure Schedule lists all material Real Property Permits held by either
Seller with respect to each parcel of Real Property.  Seller has delivered to Purchaser a true and
complete copy of all Real Property Permits. 
Seller has not received any notice from any governmental authority or
other entity having jurisdiction over the Real Property threatening a
suspension, revocation, modification or cancellation of any Real Property
Permit.


 


(ix)                                To
the Knowledge of Seller, and except as disclosed in PARAGRAPH 7.1(i)(ix),
the current use and occupancy of the Real Property and the operation of the
Business of Seller at those addresses as currently conducted thereon does not
violate any easement, covenant, condition, restriction or similar provision in
any instrument of record or other unrecorded agreement affecting such GOE Real
Property (the “Encumbrance Documents”). 
To the Knowledge of GOE it has not received any notice of violation of
any applicable Encumbrance Documents.


 


(j)                                     Fixed
Assets.  Except as set forth in PARAGRAPH
7.1(j) of the Disclosure Schedule:


 


(i)                                     the
Fixed Assets and the Improvements will be operational, taking into account
their age and general condition as of Closing;


 


30

















 


(ii)                                  no
Fixed Assets or Improvements are damaged or in need of repair, except for
ordinary wear and tear; and


 


(iii)                               each of the Fixed Assets
are in the possession of Seller and are capable of delivery upon Closing.


 


(k)                                  Intellectual
Property.


 


(i)                                     EXHIBIT 1.1(f) comprises
a full, complete and accurate listing of the Intellectual Property owned by
Seller and transferred to Purchaser hereunder.


 


(ii)                                  The
Intangible Property and Intellectual Property are not licensed to, or from, any
other Person, and Seller owns all right, title and interest in and to all
Intangible Property and Intellectual Property.


 


(iii)                               Each
Person that is the inventor or co-inventor of the Intellectual Property, which
is used by Seller within the Business has properly executed and delivered to
the Seller an assignment of the inventor’s rights in such invention.


 


(iv)                              The
Seller has not interfered with, infringed upon, misappropriated, or otherwise
come into conflict with any Intellectual Property Rights of third parties, and
the Seller has not received any charge, complaint, claim, demand, or notice
alleging any such interference, infringement, misappropriation, or violation
(including any claim that either Seller must license or refrain from using any
Intellectual Property Rights of any third party).


 


(v)                                 To
the best of Seller’s Knowledge no third party has interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any Intellectual
Property Rights of the Seller.


 


(l)                                     Conduct
of Business.


 


Seller has
conducted and will conduct its operations up to and including the Closing in
the Ordinary Course of Business. Specifically, and except as expressly provided
in this Agreement, Seller has not, and will not, without the prior written
approval of Purchaser, or as expressly provided in this Agreement, take any
action since May 31, 2008:


 


(i)                                     amending
Seller’s Articles of Incorporation or Bylaws;


 


(ii)                                  transacting
any sales of capital stock or acquisitions or redemptions thereof or the grant
of options, warrants or calls;


 


(iii)                               forming
any subsidiary, making any investment in any new business or entering any new
line of business;


 


31

















 


(iv)                             making
any increase in the compensation payable to its directors, officers or
employees except for routine wage increases;


 


(v)                                except
for borrowings in the Ordinary Course of Business under Seller’s existing line
of credit, borrowing or agreeing to borrow any money or assuming or otherwise
guaranteeing or becoming liable for any sort of Liability;


 


(vi)                             entering
into any contract, lease, commitment or the like committing to material future
expenditures, not disclosed in a schedule to this Agreement, except the
acquisition of inventory in the Ordinary Course of Business;


 


(vii)                          changing
or modifying any accounting practice;


 


(viii)                       granting or
executing any power of attorney to or for the benefit of any third party;


 


(ix)                               deferring
or failing to make any payment due with respect to any of the Assumed
Liabilities according to the terms thereof or, if earlier, in the Ordinary
Course of Business;


 


(x)                                  selling,
disposing, transferring, assigning, or otherwise removing any of the assets
used in, or related to, the Business or entering into any letter of intent to
do any of the foregoing, except inventory in the Ordinary Course of Business;
or


 


(xi)                               disposing
of, or permitting to lapse, any rights to use any of its Intellectual Property
Rights, or impairing its ability to enforce any agreement protecting any
confidential or proprietary information of the Business.


 


(m)                               Accounts
Receivable.  Except as set forth in PARAGRAPH
7.1(m) of the Disclosure Schedule, all Receivables are valid and fully
collectible and to the best of Seller’s Knowledge, not subject to any defense,
counterclaim or set-off, except and only to the extent of the reserve against
accounts receivable shown on its Business Financial Statements.


 


(n)                                 Inventory.  Except as set forth in PARAGRAPH 7.1(n) of
the Disclosure Schedule:


 


(i)                                    all
Inventory is owned by Seller, and no Inventory owned by Seller is in the
possession of any other Person; and


 


(ii)                                 all
Inventory is good and usable and is valued at the lower of cost or market,
calculated on a FIFO method, in accordance with GAAP.


 


(o)                                 No
Adverse Change.  Except as set forth
in SCHEDULE 7.1(o), there has been no adverse change in the Purchased
Assets, or the operations or condition of Seller, and none of the Real Property
Improvements or Purchased Assets have been


 


32

















 


materially damaged by fire or other casualty or otherwise disposed of
other than in the Ordinary Course of Business since the date of this Agreement.


 


(p)                                 Invoicing
by Seller.  Seller’s invoices to
customers, as provided to Purchaser during due diligence, reflect pricing to
customers which pricing is expressly permitted under the Contracts, and reflect
no charges or billing for amounts which are not expressly permitted under the
Contracts or otherwise agreed to in writing by the parties thereto.


 


(q)                                 Trade
Rights, Licenses and Permits and Franchises.


 


Seller
possesses all material Trade Rights, Licenses and Permits, approvals, and
notifications, governmental or otherwise, the absence of which would have a
material adverse effect on the Business. 
All of such Trade Rights, Licenses and Permits are freely assignable and
transferable to Purchaser at the Closing and will continue to be in full force
and effect after such transfer.


 


(r)                                    Agreements,
Arrangements, Contracts, and Commitments.


 


PARAGRAPH 7.1(R) of the Disclosure
Schedule sets forth a list of each and every agreement, arrangement, contract
or commitment to which Seller is a party, and to which any Seller Party is
bound.  Except as provided in PARAGRAPH
7.1(R) of the Disclosure Schedule, each such agreement, arrangement,
contract or commitment is terminable pursuant to the terms of the contract
without penalty, cost or Liability on notice not exceeding sixty (60)
days.  Full, complete and accurate copies
of all material agreements, arrangements, contracts or commitments, have been
provided to Purchaser.  Except as
provided therein, all of such agreements, arrangements, contracts or
commitments are in full force and effect, Seller is in material compliance
therewith, and Seller is not in breach permitting termination by, or an award
of damages to, the other Party(ies) thereto (nor has it received notice of a
claim that it is in such breach) of any contracts identified in the Disclosure
Schedule.  Except as provided in the
Disclosure Schedule any consents to the assignment of such Contracts, if any,
as are required shall be obtained by the Seller prior to Closing.


 


Neither GOE nor GOECA has received any written notice that any party to
any of the Assigned Contracts intends to cancel or terminate the agreements.


 


(s)                                  Potential
Acquirers.  Since February 11,
2008, Seller has not negotiated with, or provided confidential information
identifying Seller on a named basis to, any potential acquirer of the Business,
the Purchased Assets prior to executing appropriate confidentiality and
non-disclosure agreements (each such Person is hereinafter, a “Potential
Acquirer”).  All of such agreements shall
be provided to Purchaser at Closing, are assignable to Purchaser, and
shall be assigned to Purchaser pursuant to SECTIONS 1.1(J) AND 4.2(d) and
shall be enforceable by Purchaser after Closing.


 


33

















 


(t)                                    Employee
Plans.


 


(i)                                     Except
as provided in PARAGRAPH 7.1(t) of the Disclosure Schedule, Seller
does not have in place any pension, retirement, disability, medical, dental, or
other death benefit plan, profit sharing, deferred compensation, stock option,
or severance plan, including, without limitation, any “pension plan” as defined
in section 3(2) of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”) (“Pension Plan”), and any “welfare plan” as defined in
section 3(1) of ERISA (“Welfare Plan”), whether  or not any of the foregoing are funded
(collectively the “Employee Plans”). The term “Employee Plan” shall also
include every plan, fund, contract, program, policy, agreement and arrangement
(whether written or not):


 


(A)                              which
is sponsored, maintained or contributed or required to be contributed to by the
Seller or by any trade or business, whether or not incorporated (an “ERISA
Affiliate”), that together with Seller would be deemed a single employer within
the meaning of section 4001(b) of ERISA, or to which the Seller or an
ERISA Affiliate is a party, for the benefit of present or former employees or
managers of  Seller (or any subsidiary
of  Seller);


 


(B)                                which
the Seller or any ERISA Affiliate has committed to implement, establish, adopt
or contribute to in the future;


 


(C)                                for
which the Seller is or may be financially liable as a result of the direct
sponsor’s affiliation to the Seller or its owners (whether or not such
affiliation exists at the date of this Agreement and notwithstanding that the
plan is not maintained by the Seller for the benefit of its employees or former
employees);


 


(D)                               which
is in the process of terminating (but such term does not include any
arrangement that has been terminated and completely wound up prior to the date
of this Agreement such that the Seller has no present or potential Liability
with respect to such arrangement);


 


(E)                                 for
or with respect to which the Seller is or may become liable under any the
common law successor doctrine, express successor Liability provision of Law,
provisions of a collective bargaining agreement, labor or employment Law or
agreement with a predecessor employer.


 


(ii)                                  With
respect to any Employee Plans referred to in PARAGRAPH 7.1(t) of
the Disclosure Schedule:


 


(A)                              Such Employee Plans reflect the
applicable requirements of ERISA to the extent required by Law. The 401(k) Plan
is the only 


 


34

















 


Employee Plan that is intended to satisfy the requirements of section
401, et.seq. of the Code. The 401(k) Plan is a prototype plan that
utilizes the form of basic plan document and adoption agreement comprising the
American Funds Distributors, Inc. Nonstandardized 401(k) Plan.  The form of the prototype basic plan document
and the adoption agreement comprising the American Funds Distributors, Inc.
Nonstandardized 401(k) Plan have been determined by the National Office of
the Internal Revenue Service to comply with the requirements of
section 401 et.seq. of the Code. 
Each of the Employee Plans is currently being administered, and has been
in material compliance with the applicable provisions of the Code and ERISA;


 


(B)                                There
is no current matter which could reasonably be expected to adversely affect the
qualified tax exempt status of any such Employee Plan and trust under the Code.


 


(C)                                To
the best of Seller’s Knowledge, all required reports and descriptions
(including Form 5500 Annual Reports, summary annual reports, and summary
plan descriptions) have been timely filed and distributed appropriately with
respect to each such Employee Plan.  To
the extent applicable, the requirements of Part 6 of Subtitle B of Title I
of ERISA and Code section 4980B of the Code have been met with respect to each
such Employee Plan which is a Welfare Plan.


 


(D)                               All
contributions (including all employer contributions and employee salary
reduction contributions) which are due have been paid to each such Employee
Plan which is a Pension Plan and all contributions for any period ending on or
before the Closing which are not yet due have been paid to each such Pension
Plan or accrued in accordance with the past custom and practice of the Seller. All
premiums or other payments due for all periods ending on or before the Closing
have been paid (or, with respect to those not yet due, will have been paid on
or before Closing) with respect to each such Employee Plan which is a Welfare
Plan.


 


(E)                                 Seller
has delivered or made available to the Purchaser correct and complete copies of
the plan documents and summary plan descriptions, the most recent determination
letter received from the Internal Revenue Service, the most recent Form 5500
Annual Report, and all related trust agreements, insurance contracts, and other
funding agreements which implement each such Employee Plan.


 


(F)                                 None
of the Employee Plans, the trusts created thereunder, or any trustee,
investment manager or administrator thereof, has engaged in 


 


35

















 


a non-exempt “prohibited transaction” as such term is
defined in section 406 of ERISA and section 4975 of the Code.


 


(G)                                No
Employee Plan is subject to Title IV of ERISA.


 


(H)                               None
of the Employee Plans is a multiemployer plan as defined under section 3(37) of
ERISA or subject in any way to the provisions of the Multiemployer Pension Plan
Amendments Act of 1980, as amended.


 


(I)                                    Except
as disclosed in PARAGRAPH 7.1(t) of the Disclosure Schedule or as
otherwise contemplated by this Agreement: 
(1) no action, suit, charge, complaint, proceeding, hearing,
investigation, or claim is pending with regard to any Employee Plan other than
routine claims for benefits or, if contested, are not material in amount; (2) the
consummation of the Contemplated Transactions will not cause any Employee Plan
to increase benefits payable to any participant or beneficiary; (3) the
consummation of the Contemplated Transactions will not:  (a) entitle any current or former employee
of the Seller to severance pay, unemployment compensation or any other payment,
benefit or award under the Employee Plans; or (b) except as required by
applicable Law, accelerate or modify the time of payment or vesting, or
increase the amount of any benefit, award or compensation due any such employee
under the Employee Plan; (4) all Employee Plans have been administered in
all material respects in compliance with the documents and instruments
governing the Employee Plans, except in cases where changes in the Law require
compliance with the Laws for periods preceding the date the Employee Plans are
required to be amended with retroactive affect; (5) all materials
disclosures and notices required by applicable Law or Employee Plan provisions
to be given to participants and beneficiaries in connection with each Employee
Plan have been properly and timely made; and (6) with respect to the
Employee Plans, the Seller has no material Liability (either directly or as a
result of indemnification) for (and the transaction contemplated by this
Agreement will not cause any Liability for): (a) any excise taxes under
the Code sections 4971 through 4980B of the Code or section 4999 or section
5000 of the Code, or (b) any penalty under section 502(i), or section 502(l) of
the Code, Part 6 of Title I of ERISA or any other provision of ERISA, or (c) any
excise taxes, penalties, damages or equitable relief as a result of any
prohibited transaction, breach of fiduciary duty or other violation under ERISA
or any other applicable Law.


 


36

















 


(u)                                 Union
and Employment Contracts and Other Employment Matters.


 


(i)                                     No
executive, key employee or group of employees has provided notice of
termination of their employment or, to the Knowledge of Seller, has any plans
to terminate employment with the Seller. 
GOE and GOECA will disclose any such notice to Purchaser within three (3) business
days of receiving such notice.


 


(ii)                                  Seller
is not a party to any collective bargaining agreement or any other written
employment agreement with its employees, nor is Seller a party to any other
written contract or understanding that contains any severance pay liabilities
or obligations, except for accrued, unused vacation pay or accrued, unused sick
leave pay for its employees.


 


(iii)                               During
the last three (3) years Seller has not experienced any work stoppages,
walkouts, or strikes or attempts by its employees to organize a union.


 


(iv)                              In
the past three (3) years no claims have been made against Seller by any
former or present employee based on employment discrimination, age
discrimination, equal employment opportunity, sexual harassment, human rights
Laws violations, wrongful discharge, or unfair labor practices, and Seller has
no Knowledge of any facts or circumstances upon which any such claim could be
made.


 


(v)                                 Seller
has not received any claim asserting and have no Knowledge of any failure of
Seller to comply with applicable federal and state Laws and regulations
relating to employment of labor, including Laws and regulations relating to
wages, hours, collective bargaining, withholding taxes, and employee health and
benefits.


 


(vi)                              Seller
is in compliance with the Immigration Reform & Control Act of 1986.


 


(vii)                           Seller
is in compliance with ERISA.


 


(viii)                        Seller is
in compliance with the Occupational Safety and Health Act.


 


(v)                                 Major
Customers; Major Suppliers.


 


(i)                                     Major
Customers. 
For the three (3) previous fiscal years, SCHEDULE 7.1(v)(i) sets
forth the identity of the twenty largest customers (or 80 percent) of the
Business of Seller based on the aggregate value of the products purchased from
Seller.  Except as set forth on PARAGRAPH 7.1(v)(i) of
the Disclosure Schedule, no customer has reduced or has notified GOE or GOECA
that it intends  to cease doing business
with Seller, or reduce the amount of purchases of products from Seller.


 


(ii)                                  Major
Suppliers. 
For the three (3) previous fiscal years, SCHEDULE 7.1(v)(ii) sets
forth the identity of the twenty largest suppliers 


 


37

















 


(or 80 percent of supply costs) of raw materials or equipment used by
GOE or GOECA.  Except as set forth on SCHEDULE 7.1(v)(ii) no
supplier has reduced or has notified GOE or GOECA that it intends to reduce the
amount of raw materials or equipment available for purchase by Seller.


 


(w)                               Liability
Claims.


 


All products
sold or services provided by Seller have been merchantable, have not been
adulterated or misbranded within the meaning of the Federal Food, Drug and
Cosmetic Act, as amended, and not an article which may not be introduced into
interstate commerce under the provisions of Section 404 or 505 of such
act, and has not been an article which cannot be legally transported or sold
under the provisions of any federal, state or local Law, and have complied with
the terms of any written or oral warranties made by Seller and all such
warranties are identified in the Disclosure Schedule and copies of all written
warranties are attached thereto. During the last three (3) years, Seller
has not received any single claim exceeding Ten Thousand Dollars ($10,000.00)
or claims in the aggregate exceeding Twenty Five Thousand Dollars ($25,000.00)
based upon an alleged breach of product warranty, arising from Seller’s
provision of products or services (hereafter collectively referred to as “Liability
Claims”). The Seller has no Knowledge that future Liability Claims with respect
to products or services of Seller sold prior to the Closing will be different
from Seller’s past experience with respect thereto as set forth herein.


 


(x)                                   Environmental,
Health and Safety Matters;


 


Seller has not
violated, and is not in violation of, any Environmental, Health and Safety
Requirements.  Seller does not now, and
has not previously, owned, leased, operated or controlled any real property,
including the Business Premises, upon which any Hazardous Substances have been
treated, stored, used, released or disposed. 
Seller does not now, and has not previously, owned, leased or controlled
any Hazardous Substances treated, stored, used or released at any location
other than the Business Premises.  All
storage tanks and associated pipes, pumps and structures (whether above or
below ground) located in or on the Business Premises or any other real property
currently or previously owned, leased, operated or controlled by Seller, are in
sound condition, free of corrosion, meet all applicable performance standards
and do not now, and have not at any time in the past evidenced impaired
integrity or leakage.  Without limiting the
generality of the foregoing, Seller’s disposal practices, including the
disposal of egg shells, has fully complied with all applicable Laws.  Seller has received no notice of any such
alleged violation, or any of the matters set forth in this subsection.  No material expenditures are required for
Seller to comply with Environmental, Health and Safety Requirements.


 


(y)                                 Insurance.


 


A complete
list of Seller’s current insurance coverage is attached hereto in PARAGRAPH
7.1(x) of the Disclosure Schedule. 
Seller has maintained, and will continue to maintain until the Closing,
insurance on Seller’s tangible real and personal property and assets, whether
owned or leased, against loss or damage by 


 


38

















 


fire or other
casualty, in the amounts currently maintained. 
All such insurance is in full force on the date of this Agreement, and
there are no premium payments past due thereon. Seller has promptly and
adequately notified Seller’s insurance carriers of any and all claims known to
Seller with respect to the operations or products of Seller for which Seller is
insured.


 


(z)                                   Burdensome
Conditions.


 


There are no
actions taken, pending or threatened, by any governmental authority or other
Person to investigate or challenge any action or inaction of Seller under any
applicable Laws, nor is Seller subject to any existing judgment, order, or
decree which would prevent, or make illegal the consummation of the
Contemplated Transactions or which would have an adverse effect on the Business
or the Purchased Assets.


 


(aa)                            Litigation.


 


There is no
pending litigation against Seller, nor to the Knowledge of Seller any adverse
claims which may lead to litigation, relating to any aspect of the Business or
the Purchased Assets.


 


(bb)                          Laws
and Regulations.


 


Seller is in
material compliance with all Laws relating to the Business or the Purchased
Assets. Seller has not received any notice of, and Seller has no Knowledge of,
any sort of alleged material violation of any such Laws.


 


(cc)                            Breaches
of Contracts; Required Consents.


 


Neither the
execution and delivery of this Agreement by Seller nor compliance by Seller
with the terms and provisions thereof, will:


 


(i)                                     Conflict
with or result in a breach of:


 


(A)                              Any
of the terms, conditions, or provisions of the Articles of Incorporation,
Bylaws, or other governing instruments of Seller;


 


(B)                                Any
judgment, order, decree, or ruling to which Seller is a party or by which any
of them is bound;


 


(C)                                Any
Law, rule, regulation or injunction of any court or governmental authority to
which Seller is subject; or


 


(D)                               Any
mortgage, agreement, contract, lease, or commitment binding upon Seller;


 


(ii)                                  Require
the affirmative consent or approval of any third party; or


 


(iii)                               Cause
acceleration of any other obligations of Seller.


 


39

















 


(dd)                          Brokers.


 


Seller has
engaged Greene Holcomb & Fisher as their broker in connection with the
Contemplated Transactions, and has engaged no other broker in connection with
the Contemplated Transactions. Greene Holcomb & Fisher’s fees for this
transaction shall be the sole responsibility of Seller and will be paid by
Seller via wire transfer at Closing.


 


(ee)                            Copies
of Documents.


 


Seller has
made available for inspection and copying by Purchaser true and correct copies
of all documents referred to in this Agreement or in any exhibit hereto.


 


(ff)                                Change
of Control Agreements.


 


Seller does
not have in place any agreements, whether written or oral, that provide any
Person extraordinary rights (including rights with respect to voting,
appointment of directors or officers, control of operations, or limitations on
shareholders’ exercise of shareholder’s normal rights incidental to their
respective share ownership in such corporations) with respect to Seller whether
presently existing or arising upon consummation of any of the Contemplated
Transactions.


 


Section 7.2.                                REPRESENTATIONS AND
WARRANTIES OF PURCHASER.


 


Purchaser makes the following representations and
warranties to Seller with the intention that Seller may rely upon the same and
acknowledges that the same shall be true on the date hereof and as of the
Closing (as if made at the Closing) and shall survive the Closing.


 


(a)                                  Organization.  Purchaser is a corporation, duly organized,
validly existing, and in good standing under the Laws of the State of Iowa, and
has all requisite power and authority, corporate and otherwise, and possesses
all necessary government licenses, to own and lease its properties and assets
and to conduct the business in which it is presently engaged.


 


(b)                                 Corporate
Authority.  This Agreement and all
Ancillary Documents constitute the legal, valid, and binding obligation of
Purchaser in accordance with the terms thereof. 
Purchaser has all requisite corporate power and authority, including the
approval of its Board of Directors, to execute, perform, carry out the
provisions of, and consummate the Contemplated Transactions.


 


(c)                                  Breaches
of Contracts; Required Consents. 
Neither the execution and delivery of this Agreement by Purchaser, nor
compliance by Purchaser with the terms and provisions thereof, will:


 


(i)                                     Conflict
with or result in a breach of:


 


(A)                              Any
of the terms, conditions, or provisions of the Articles of Incorporation,
Bylaws, or other governing instruments of Purchaser;


 


(B)                                Any
judgment, order, decree, or ruling to which Purchaser is a party or by which it
is bound;


 


40

















 


(C)                                Any
Law, rule, regulation or injunction of any court or governmental authority to
which Purchaser is subject; or


 


(D)                               Any
mortgage, agreement, contract, lease, or commitment which is material to the
financial condition of Purchaser; or


 


(ii)                                  Require
the affirmative consent or approval of any third party.


 


(d)                                 Brokers.  Purchaser has not engaged the services of any
broker or finder in connection with the transaction described in this
Agreement.


 


(e)                                  Financial
Capability.  The Purchaser at the
Closing will have sufficient funds to pay the Purchase Price in connection with
the Contemplated Transactions.


 


ARTICLE
8.                             RESTRICTIVE COVENANTS.


 


Section 8.1.                                NON-COMPETITION.


 


The Seller hereby covenants that from and after the
Closing and for a period of five (5) years it will not, either alone, or
jointly with, or as a partner, principal or agent for any Person, firm,
partnership, business, or corporation, either directly or indirectly: (a) engage
in the Business anywhere in the United States of America; or (b) engage in
any occupation, business or interests similar to, competitive with, or of the
same nature as the Business as heretofore conducted by Seller or as it may
hereafter be conducted by Purchaser.


 


Section 8.2.                                NON-DISCLOSURE.


 


Seller acknowledges and agrees that all books,
documents, lists and records pertaining to the Seller and the Business which
are Purchased Assets (hereinafter collectively, the “Records”), whether the
Records are written, typed, printed, contained on microfilm, computer disk,
tape or any other form of storage media, are the sole and exclusive property of
the Business and that upon consummation of the transactions contemplated in the
Agreement will become the sole and exclusive property of the Purchaser.  Further, Seller shall not divulge,
communicate, use to the detriment of Purchaser or the Business, or for the benefit
of the Seller or any other Person, or otherwise misuse, any confidential
information, data, or trade secrets, whether or not contained in the Records,
which are proprietary or confidential to Purchaser, the Seller, or the Business
(as distinguished from material which is or may come into the public domain
through no fault of Seller) including any material which is part of, contained
in, or related to the Purchased Assets, or Seller’s processes or techniques,
technical data or cost or pricing information except to the extent such
information is in the public domain or prior to Closing comes into the public
domain through no fault of Seller, and except to the extent required to be
disclosed by Law or court order, or as required in litigation or subpoena to
which the Seller is subject.


 


Section 8.3.                                NO USE OF NAME.


 


Seller covenants that from and after Closing they
shall not use the mark Golden Oval Eggs either as a corporate name or in any
trade or business nor shall it use any name containing the word “Golden Oval
Eggs” or any name confusingly similar to such name or words.


 


41
















 


Section 8.4.                                INJUNCTIVE RELIEF.


 


The Parties agree that it would be impossible to
measure in money the damages which will accrue to Purchaser or the Business by
reason of Seller’s failure to comply fully with the covenants contained in this
ARTICLE 8. Seller acknowledges that the remedy at Law for any breach
would be inadequate, and that, in addition to damages, Purchaser shall be
entitled to injunctive relief from any court having jurisdiction of Seller and
the subject matter, ordering specific performance of the provisions of this ARTICLE
8. In any action to enforce the provisions of the ARTICLE 8, Seller
shall waive the right to claim that Purchaser has an adequate remedy at Law.
Seller specifically admits receipt and adequacy of consideration for the covenants
contained in this ARTICLE 8 and the reasonableness of the restrictions
contained in this ARTICLE 8.


 


ARTICLE
9.                             SURVIVAL.


 


Section 9.1.                                SURVIVAL
OF REPRESENTATIONS AND WARRANTIES.


 


Excluding any claims related
to Intentional Misrepresentation or fraud, i) the right of the Parties to make
any claims for breaches of the representations and warranties contained in SECTION 7.1
hereof, and ii) any liability for breaches of the representations and
warranties contained in SECTION 7.1 and SECTION 7.2 hereof;
shall terminate upon the Closing.


 


ARTICLE
10.                      GENERAL.


 


Section 10.1.                         ENTIRE AGREEMENT.


 


This Agreement, together with the schedules and
exhibits pursuant to this Agreement or executed and delivered at Closing, sets
forth the entire agreement and understanding among the Parties as to the
subject matter, and merges and supersedes all prior discussions, agreements,
and understandings of every and any nature among them. This Agreement shall be
effective only when signed by all of the Parties on the signature pages. No
Party shall be bound by any condition, definition, warranty, or
representations, other than as expressly set forth or provided for in this
Agreement, or as may be, on or subsequent to the date of this Agreement set
forth in writing and signed by the Party to be bound.  This Agreement may not be amended,
supplemented, changed, or modified, except by agreement in writing signed by
the Parties to be bound.


 


Section 10.2.                         APPLICABLE LAW; WAIVER OF JURY
TRIAL; CONSENT TO JURISDICTION.


 


The validity, construction and performance of this
Agreement shall be governed by and construed in accordance with the internal
Law of the state of Minnesota applicable to contracts executed in and performed
entirely within such state, without reference to any choice of Law statutes or
principals thereof. With respect to any litigation arising out of this
Agreement, the Parties expressly waive any right they may have to a jury trial
and agree that any litigation shall be tried by a judge without a jury. Each
Party agrees to non-exclusive personal jurisdiction and venue in the United
States District Court for the District of Minnesota and/or any State District
Court in Minnesota.


 


42

















 


Section 10.3.                         SCHEDULES AND EXHIBITS.


 


Each schedule and exhibit delivered pursuant to the
terms of this Agreement shall be in writing, subject to amendments permitted
under the express terms and conditions of SECTION 3.10 and shall
constitute a part of this Agreement as if fully set forth in this Agreement.


 


Section 10.4.                         EXECUTION IN COUNTERPARTS.


 


For the convenience of the Parties, this Agreement may
be executed in one or more counterparts (including facsimile counterparts which
shall have the same effect as originals), and by different Parties on different
counterparts with the same effect as if the signatures were on the same
instrument. This Agreement shall be effective and binding upon all Parties only
when all Parties have executed a counterpart of this Agreement.


 


Section 10.5.                         HEADINGS.


 


The headings in the sections of this Agreement are
inserted for convenience only and shall not constitute a part of this
Agreement.


 


Section 10.6.                         PRONOUNS.


 


All pronouns used in this Agreement shall be deemed to
include the masculine, feminine, and neuter.


 


Section 10.7.                         PLURALS.


 


Plural terms shall be deemed to include the singular
and the singular the plural whenever necessary or appropriate to effect the
intent of this Agreement including in conjunction with defined terms as set
forth in this Agreement.


 


Section 10.8.                         BINDING EFFECT AND BENEFIT.


 


This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, executors, legal
representatives, successors, and permitted assigns.


 


Section 10.9.                         SUCCESSORS AND ASSIGNS.


 


No Party hereto shall assign or transfer any of its
rights or obligations without the prior written consent of the other Parties.
Notwithstanding the foregoing, Purchaser may assign its rights and obligations
(or any portion thereof) hereunder to an Affiliate, whether presently existing
or formed subsequent to the date hereof; provided, however, that Purchaser
shall guarantee the performance hereof by its assignee subject to the terms and
conditions of this Agreement.


 


Section 10.10.                  NO THIRD PARTY RIGHTS.


 


This Agreement is not intended, and shall not be
construed, to create any rights in any Person other than the Parties to this
Agreement and no other Person shall have any rights as a third party
beneficiary under this Agreement.


 


Section 10.11.                  NOTICES.


 


(a)                                  Recipients.  All notices, consents, waivers, and other
communications (each hereinafter a “Notice”) which are required to be given or
may be given pursuant to the terms of this Agreement shall be in writing signed
by the Party or an officer of the Party giving notice or by counsel for such
Party and shall be sufficient in all respects if delivered in person, or mailed
by registered or certified mail, postage prepaid, or sent by commercial
expedited delivery service, as follows:


 


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  If to Seller or any of them:

  	
   

  	
  Golden Oval Eggs, LLC

  
	
   

  	
   

  	
   

  
	
  With a copy to (which copy shall  be mandatory to effect Notice but shall not
  alone constitute Notice):

  	
   

  	
  Mark Hanson 

  
	
   

  	
  Stoel Rives LLP 

  
	
   

  	
  Suite 4200 

  
	
   

  	
   

  	
  33 South Sixth Street 

  
	
   

  	
   

  	
  Minneapolis, MN 55402

  
	
   

  	
   

  	
   

  
	
  If to Purchaser:

  	
   

  	
  Rembrandt Enterprises, Inc.

  
	
   

  	
   

  	
  1419 480th Street

  
	
   

  	
   

  	
  Rembrandt, IA 50576 

  
	
   

  	
   

  	
  Attention: President

  
	
   

  	
   

  	
   

  
	
  With a copy to (which copy shall be mandatory to effect Notice but
  shall not alone  constitute Notice): 

  	
   

  	
  Rembrandt Enterprises, Inc. 

  
	
   

  	
  c/o 1725 Roe Crest Drive 

  
	
   

  	
  North Mankato, Minnesota 56002-3728 

  
	
   

  	
   

  	
  Attn: General Counsel’s Office

  



 


or such
replacement address as any Party hereto shall have designated by Notice to the
other Parties as provided in this Agreement.


 


(b)                                 Effective
Time.  Any Notice shall be effective
when the Party giving the Notice has complied with SECTION 10.11(a) and
when received by all Persons specified to receive such Notice.  A Notice is deemed to have been received as
follows:


 


(i)                                     upon
receipt as indicated on the signed receipt, if given by hand or sent by
registered or certified mail or commercial expedited delivery service; or


 


(ii)                                  if
the Party to whom Notice is sent refuses delivery or if the Notice cannot be
delivered due to a change in address for which no Notice was provided, then
upon rejection, refusal or inability to deliver.


 


Notwithstanding
the foregoing provisions, if any Notice is received after 5 p.m. on any
Business Day or on any day other than a Business Day where received, the Notice
shall be deemed to have been delivered at 9 a.m. on the next following
Business Day.


 


Section 10.12                     DEFINITIONS.


 


Unless otherwise specified
in this Agreement, the following terms (or any singular, plural,
derivative or alternative
form) as used in this Agreement or the instruments, certificates, or other
documents required under this Agreement, shall
have the meanings assigned in this SECTION 10.12:


 


44

















 


(a)                                  Affiliate.  Affiliate means
any Person controlling, controlled by or under common control with the Party or
Person specified, including any:


 


(iii)                               subsidiaries;


 


(iv)                              partners;


 


(v)                                 divisions;
and


 


(vi)                              shareholders
possessing the authority to appoint a majority of the board of directors or to
direct the actions of such Party or Person.


 


(b)                                 Ancillary
Documents.  Ancillary
Documents means, in the case of Seller, all documents executed by
Seller and delivered under SECTION 4.2,
and in the case of Purchaser, all documents executed by Purchaser and delivered
under SECTION 4.3.


 


(c)                                  Business
Day.  Business Day means a day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York, are authorized or
required by Law to close.


 


(d)                                 Contemplated
Transactions.  Contemplated
Transactions means all of the transactions contemplated by this
Agreement, including:


 


(i)                                    the
execution, delivery, and performance of the agreements and other instruments to
be delivered pursuant to the terms of this Agreement;


 


(ii)                                 the
performance by the Parties of their respective covenants and obligations under
this Agreement; and


 


(iii)                              the
purchase and sale of the Purchased Assets.


 


(e)                                  Customer
and Prospect Information.  Customer and Prospect Information means: (i) all
information regarding customers (regardless of date of last purchase) and
prospects (regardless of date of last contact) whether maintained as an
individual record or in composite or list form including contact information,
source of customer or prospect name, demographic information (including SIC or
other industry codes, nature of business, and employee count), transaction
records (including notes), purchase history, order and contact frequency,
responses to marketing campaigns and offers, billing and payment history,
shipping and credit information and terms; and (ii) all information
regarding marketing and prospecting campaigns, techniques and offers including
source(s) of lists, analysis of list performance, response rates,
advertising costs, total campaign revenue, total campaign cost of goods sold
and other costs, average order size, customer retention, and lifetime value of
customers.


 


(f)                                    Environmental,
Health and Safety Requirements.  Environmental, Health and Safety Requirements means any Laws
relating to public health and safety, worker health and safety, and pollution
and protection of the environment, including the


 


45

















 


treatment, storage, use, release, disposal, or
management of Hazardous Substances, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”),
42 U.S.C. Section 9601 et seq., the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801 et seq., the Resource Conservation and Recovery
Act (“RCRA”), 42 U.S.C. Section 6901 et seq., the Clean Water Act, 33
U.S.C. Section 2601 et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601
et. seq., the Federal Insecticide Fungicide, and Rodenticide Act, 7. U.S.C. Section 136
et seq., the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq.,
the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq., and
the Emergency Planning and Community Right to Know Act, as those laws have been
amended or supplemented, and the regulations promulgated pursuant to those
laws, and all analogous state or local laws.


 


(g)                                 GAAP.  GAAP means
United States generally accepted accounting principles, consistently applied.


 


(h)                                 Hazardous
Substances.  Hazardous
Substances means 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 Health and
Safety Requirement 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 byiphenyls, and any other
substances defined or listed as “hazardous substances”, “hazardous materials”, “hazardous
waste”, “extremely hazardous substances”, “toxic substances”, “toxic chemicals”,
or any variation thereof, pursuant to applicable Laws.


 


(i)                                     Intellectual
Property Rights.  Intellectual
Property Rights means:


 


(A)                                             all
inventions (whether or not patentable and whether or not reduced to practice),
all improvements thereto, and all patents, patent applications, and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof;


 


(B)                                               all
trademarks, service marks, trade dress, logos, trade names, and corporate
names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith;


 


(C)                                               all
works (whether or not copyrightable), all copyrights, and all applications,
registrations, and renewals in connection therewith;


 


46

















 


(D)                                              all
mask works and all applications, registrations, and renewals in connection
therewith;


 


(E)                                                all
trade secrets and confidential business information (including ideas, research
and development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and business and
marketing plans and proposals);


 


(F)                                                all
computer software (including data and related documentation);


 


(G)                                               all
other proprietary rights; and


 


(H)                                              all
copies and tangible embodiments thereof (in whatever form or medium).


 


(j)                                     Intentional
Misrepresentation.  Intentional
Misrepresentation means the equivalent of a person intentionally making a false
statement with the hope and intent that you rely upon it to your harm.
Intentional misrepresentation can take the form of an intentionally made false
promise to do something in the future with no intention of performing at the
time the promise is made. Similarly, where someone, because of a relationship
with the other person, has a duty to disclose certain facts and intentionally
conceals them, that person can be guilty of intentional misrepresentation.


 


(k)                                  Knowledge.  Knowledge
means, with respect to any Person, actual knowledge of a fact or constructive
knowledge if a reasonably prudent Person in a like position would have known,
or should have known, the fact after due inquiry, and with respect to any
corporation or other entity, actual knowledge of a fact by any officer,
director or employee of such corporation or entity (or any Affiliate) or
constructive knowledge if a reasonably prudent officer, director or employee
would have known, or should have known the fact after due inquiry.   For
purposes of this Agreement, officers, directors or employees of the
Seller are limited to Dana Persson, Rob Harrington, Tom Powell, Jerry Armstrong
and William Bloyer, and in the case of Purchaser, are limited to Dave Rettig,
Bill Kozitza and Brad Fullmer.


 


(l)                                     Laws.  Laws means any
applicable federal, state, county, or local laws, statutes, rules, regulations,
ordinances and requirements promulgated by governmental or other authorities
including any judicial or administrative interpretations thereof.


 


(m)                               Liability.  Liability means
any liability (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due), including any
liability for Taxes.


 


47

















 


(n)                                 Most
Recent Balance Sheet.  Most Recent Balance Sheet means the balance sheet(s) included
within the Financial Statements as of the Most Recent Fiscal Year End.


 


(o)                                 Most
Recent Fiscal Year End.  Most Recent Fiscal Year End means August 31, 2007.


 


(p)                                 Ordinary
Course of Business.  Ordinary Course of Business means:


 


(i)                                    the
action is consistent with the past custom and practice (including with respect
to quantity and frequency) of such Person in the day-to-day operations of such
Person; and


 


(ii)                              the
action is not required to be authorized by the board of directors of such
Person (or by any Person or group of Persons exercising similar authority) and
is not required to be authorized by the parent company (if any) of the Person.


 


(q)                                 Party.  Party means
each Seller Party and the Purchaser.


 


(r)                                    Person.  Person means an
individual, a partnership, a corporation, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization, or a
governmental entity (or any department, agency, or political subdivision
thereof).


 


(s)                                  Related
Person.  Related
Person means a Person which is:


 


(i)                                     an
Affiliate of the specified Person; or


 


(ii)                                  is
a shareholder, officer, director of the specified Person; or


 


(iii)                               is
a parent, child, spouse or sibling or a member of the same household of the
specified Person or of any of the foregoing Related Persons.


 


Section 10.13.                  SEVERABILITY.


 


If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, that provision shall be enforced to the
greatest extent permissible so as to affect the intent of the Parties, and the
legality, validity and enforceability of the remaining provisions shall in no
manner be affected or impaired. If necessary to effect the intent of the
Parties, the Parties will negotiate in good faith to amend this Agreement to
replace the illegal, invalid or unenforceable provision with legal, valid and
enforceable language which as closely as possible reflects the intent.


 


Section 10.14.                  EXPENSES.


 


Each Party shall each bear and pay for its own costs
and expenses incurred by it or on its behalf in connection with the
Contemplated Transactions, including, without limitation, all fees and


 


48

















 


disbursements of attorneys, accountants, brokers, and
financial consultants incurred through the Closing (“Transaction Costs”).


 


Section 10.15.                  PUBLICITY.


 


No public release, announcement or other form of publicity concerning
this Agreement or the Contemplated Transactions shall be issued by any Party
without the prior written consent of all other Parties hereto; provided, however,
that GOE is authorized to make such disclosures as may be required under
applicable securities and other Laws and further provided in SECTIONS 3.8
and 3.9 of this Agreement.


 


Section 10.16.                  WAIVER.


 


The waiver by any Party of any other Party’s non-compliance
with any obligation or responsibility shall be ineffective unless given in
writing and shall not be deemed a waiver of other instances of non-compliance
or of any Party’s remedies for such non-compliance.


 


Section 10.17.                  Construction; INTERPRETATION.


 


The Parties acknowledge that this Agreement was
prepared by the Purchaser solely as a convenience and that all Parties and
their counsel have read and fully negotiated all the language used in this
Agreement. No rule of construction shall apply to this Agreement which
construes ambiguous or unclear language in favor of or against any Party by
reason of that Party’s role in drafting this Agreement.  No provision hereof shall be construed as a
limitation or modification of any other provision hereof.  Unless otherwise specified in the relevant
provision, “including” means “including without limitation” and no exclusion of
unlisted items shall be inferred from their absence.


 


Section 10.18.                  DISCLOSURE SCHEDULES.


 


Items required to be disclosed on the Disclosure
Schedule shall be deemed to be disclosed unless such disclosure identifies the
matter with reasonable particularity and describes the item to be disclosed in
reasonable detail. No such disclosure under any Schedule or certificate shall
be deemed a disclosure under any other Schedule or certificate unless the
latter Schedule or certificate contains a clear reference to the former
Schedule or certificate and the referenced disclosure identifies both
exceptions with reasonable particularity and detail.


 


Section 10.19.                  SPECIFIC PERFORMANCE.


 


Each Party agrees that remedies at Law may be
inadequate to protect the other Party from and against any actual or threatened
breach of this Agreement by such part or any of its representatives.  Without prejudice to the rights and remedies
otherwise available to it, each Party agrees that any other Party may seek
equitable relief in favor of the other Party by way of specific performance or
otherwise without proof of actual damages, if the Party or any of its Representatives
breach or threaten to breach any of the provisions of this Agreement.


 


Section 10.20.                  ATTORNEY FEES.


 


If any litigation shall be commenced to enforce, or
relating to, any provision of this Agreement or any Ancillary Documents, the
prevailing Party shall be entitled to an award of reasonable attorney fees
(including fees related to the services of in-house counsel) and reimbursement
of such other costs as it incurs in prosecuting or defending such
litigation.  For purposes of this


 


49

















 


SECTION 10.20,
prevailing Party shall include a Party awarded injunctive relief, and a Party
prevailing upon appeal.


 


Section 10.21.                  CONSENTS.


 


Any consent permitted or required in this Agreement or
any Ancillary Documents shall be ineffective if not in writing and, unless
provided otherwise, shall be granted or denied in the sole and absolute
discretion of the Party authorized to grant the consent.


 


IN WITNESS WHEREOF, this Purchase and Sale Agreement has been duly
executed by each Seller Party and the Purchaser effective as of the date first
above written.


 


	
   

  	
   

  	
  REMBRANDT
  ENTERPRISES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GOLDEN
  OVAL EGGS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GOECA,
  LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GOECMA,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


50

















 


	
   

  	
   

  	
  MIDWEST
  INVESTORS OF IOWA, COOPERATIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


51