FRESH HARVEST PRODUCTS,
INC.
Exhibit 10.1
Asset Purchase
Agreement
Effective
Date
June __, 2009
between
Fresh Harvest Products,
Inc., (“Company”)
a
New Jersey
corporation,
located at
280 Madison Ave, Suite
1005, New York, NY 10016
and
Organic Chef, LLC
, (“Seller”)
a
New York, limited
liability corporation
located at
2919 Avenue I, Brooklyn,
NY 11210
Summary
§
Company desires to
purchase 100% of the assets owned by Seller in the operation of the
Business, subject to the conditions and upon the terms and
conditions set forth herein.
§
As of May 21, 2009, an
expert outside appraisal firm, Sencer Appraisal Associates, Inc.,
completed an Asset Valuation of the assets of the Seller. Sencer
Appraisal Associates, Inc. was hired by the Company in May, 2009 to
perform the Valuation, which cost $626.50. In performing the
Valuation, Sencer Appraisal Associates, Inc. visited Seller’s
offices, performed a physical review of assets and inventory. The
Parties and their respective managers and directors are relying
upon this Asset Valuation in establishing the Purchase
Price.
1.
Agreement
THEREFORE , in consideration of the mutual
agreements of the parties and other good and valuable
consideration, the receipt and sufficiency of which are
acknowledged, it is agreed as follows:
Agreement of Purchase and
Sale . Company hereby agrees to purchase
from Seller and Seller hereby agrees to sell to Company, for the
consideration and upon the terms and conditions set forth herein,
all of Seller’s right, title and interest in and to all
assets of Seller constituting or used in connection with the
Business (the “Assets”), including without limitation
the following:
1.1.2
Product, Inventory and
supplies listed in Exhibit A.
1.1.3
Office furniture, office
equipment, manufacturing equipment, computer equipment and other
machinery and equipment listed in Exhibit A.
1.1.5
All of the rights, title
and interest in and to all fixtures and leasehold improvements of
the Seller.
1.1.6
Telephone numbers,
service marks, the trade name [trade name / trademark / service
mark], and all other trade names and trademarks (including the
goodwill represented by that), trade secrets, Business records and
files, lists of current and potential Customers and Vendors,
product formulations existing and under development, promotional
materials, copyrighted materials and all other intangible items,
including the goodwill of Business as a going concern.]
1.1.7
All rights under the
contracts, leases, licenses, insurance policies, fidelity and
contract bonds, and other Agreements relating to the
Business.
1.1.8
All documents, files,
Agreements, instruments, records, notices, Membership Certificates,
affidavits, statements, and all other papers and information of any
kind relating to the Business or the Assets, including but not
limited to such items stored in computer memories, on microfiche,
electronically or by any other means, used, made or compiled by or
on behalf of the Seller or made available to the Seller (all of
which shall be delivered by the Seller to the main premises of the
Business (if not already present there) on or before the Effective
Date.
FRESH HARVEST
PRODUCTS, INC.
1.1.9
All other property and
assets of every kind and description whether personal, real, mixed,
tangible or intangible, wherever located and whether or not
reflected on its balance sheet.
1.2
Assets
Excluded
Assumed Obligations
. Except as listed
below in this section, the Company will not assume any of
Seller’s debts and obligations, including without limitation
trade payables and legal fees, all of which shall remain the sole
responsibility of Seller.
1.2.1
The following assets are
not being sold by the Seller or purchased by the Buyer and are
specifically excluded from the meaning of the term
“Assets”:
1.2.2
Certain receivables may
be retained by the Seller. Section 1.2.3 lists the
receivables, if any, that the Seller does not want transferred to
the Buyer.
1.2.3
Receivable due the
Seller on the Closing Date.
1.2.4
Cash and cash equivalent
items, including Lender accounts, money market accounts,
certificates of deposit and Lender deposits, on hand at the close
of business on the Closing Date.
1.2.5
Accounts receivable
earned from operations of the Business during the period beginning
60 days prior to the Closing Date and ending on the Closing Date,
and accounts receivable as to litigation commenced prior to the
Closing Date against a debtor for purposes of
collection.
1.2.6
All judgments in favor
of the Seller in connection with the collection of accounts
receivable.
1.2.7
All checkbooks, stubs,
books of account, ledgers, and journals relating to the prior
operation of the Business.
1.3
Liabilities
1.3.1
Subject to the terms and
conditions of this Agreement, the Buyer will, as of the Closing
Date, assume from the Seller and agrees to discharge only those
liabilities and obligations that both accrue and arise after the
Closing Date with respect to the paid sales orders / Agreements for
Products to be delivered by the Seller to the Buyer at the
Closing.
2.
Purchase Price &
Terms of Payment
The total purchase price to be paid
by Company to Seller for the Assets (the “Purchase
Price”) will be the sum of $21,506.40 which shall be paid in
the form of 2,509,205 restricted common shares payable as
follows.
2,509,205 restricted common shares
will be issued by the Company to Seller within 10 business days
after the Closing, excluding the 400,000 restricted common shares
which were issued upon the signing of the Letter of
Intent;
Closing . The closing of the transactions
contemplated by this Agreement (the “Closing”) shall
occur at the Company’s offices on June ____, 2009.
Company has been provided
unrestricted access to, and conducted a due diligence review of,
Seller’s books and records, including without limitation,
corporate minute books and stock ledgers; bank records; accounting
books and records (including without limitation periodic financial
statements, accounts payable ledgers, and accounts receivable
ledgers); insurance files (including liability, property, group
health and workers’ compensation insurance policies and
claims records); operating policies and procedures; employee
manuals; federal and state income tax returns for the most recent
three years; and sales tax returns and payment records, and has
approved same, in Company’s sole discretion.
3.
Covenant Not to
Compete
Seller agrees that Seller shall
not, during the period of three (3) years following the Closing,
without the prior written consent of Company, which consent may be
withheld for any reason or no reason, directly or indirectly engage
in, or own or control an interest in, or act as an officer,
director, or employee of, or consultant or adviser to, any business
consisting, wholly or in part, of the organic and natural beverage
industry.
It is understood and agreed that,
in the event of a breach of the covenants contained in this
Agreement, Company will not have an adequate remedy in the form of
money damages in that that the loss to Company will not likely be
an isolated case and it will be difficult or impossible to
ascertain the exact amount of loss. In such event, therefore,
Company shall be entitled to a temporary restraining order,
preliminary injunction and/or permanent injunction, without bond,
restraining the breaching party from engaging in the activity
prohibited under this Agreement. Such remedy shall be nonexclusive
and without prejudice to any and all other remedies to which
Company may be entitled. Further, in the event of a violation of
any of the covenants in this Agreement, the period for which the
provision would remain in effect shall be extended for a
FRESH HARVEST
PRODUCTS, INC.
period of time equal to that period
when the activities constituting the violation commenced and ending
when the activities constituting the violation shall have been
finally terminated in good faith.
Selling Parties expressly
acknowledge and agree that the restrictive provisions of this
Agreement are reasonable and necessary for the protection of
Company's legitimate business interests, that such restrictions
impose no undue burden upon Selling Parties, and that the
enforcement of such restrictions will not cause any Selling Party
to be deprived of the ability to earn a livelihood.
Company, in addition to all
equitable relief and damages, shall be entitled to recover all
costs, expenses and fees, including attorneys' fees, incurred by
Company in connection with the breach, by a Seller, of any covenant
or agreement under this Agreement or the enforcement of any such
covenant or agreement, whether or not suit is
instituted.
4.
Indemnification of
Sellers
Company jointly and severally
agrees to indemnify and hold Seller harmless from and against any
and all loss, liability, settlement, damage, deficiency, cost and
expense arising by virtue of:
Any breach of this Agreement or
misrepresentation hereunder by Company;
Any and all actions, suits,
proceedings, demands, judgments, costs and other expenses,
including reasonable attorney's fees, incident to any of the
matters referred to in this Section or any claims with respect
thereto.
5.
Indemnification of
Company
Seller agrees to indemnify and hold
Company harmless from and against any and all loss, liability,
damage, deficiency, costs and expenses arising by virtue
of:
Any breach of this Agreement or
misrepresentation hereunder by Seller; and
Except as to those obligations
expressly assumed herein, any debt or obligation of Seller,
including, without limitation, any debt or obligation arising out
of or in connection with the operation of the Business by Seller
prior to the Closing Date, and any act or omission on the part of
Seller, its respective officers, employees, and agents, in
connection therewith.
Any and all actions, suits,
proceedings, demands, judgments, costs and expenses, including
reasonable attorney's fees, arising out of the operation of the
Business prior to the Closing, or any claims with respect
thereto.
6.
Confidential
Information and Intellectual Property
Disclosure of
Information. Seller shall work with and be
exposed to the business a
