ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement") dated June 30, 2005, by and
between XXXXXXXXX FOODS, INC., a Wisconsin corporation ("Purchaser") and GALAXY
NUTRITIONAL FOODS, INC., a Delaware corporation ("Seller").
WHEREAS, Seller produces certain imitation dairy products at a facility
located in Orlando, Florida (the "Facility"); and
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller the Purchased Assets, according to the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, and agreements contained herein, the parties hereto agree
as follows:
A. Definitions.
1. Agreement. This Asset Purchase Agreement.
2. Xxxx of Sale. The document delivered by the Seller to the Purchaser
under which Seller shall convey to Purchaser title to the Purchased
Assets in the form of Exhibit A.2 hereto.
3. Closing. The consummation of the transactions contemplated hereby as
set forth in Section D hereof.
4. Closing Date. November 1, 2005, effective as of 12:01 a.m., Central
Standard Time, or, if later, the date that is three (3) business
days after the date on which all conditions to closing specified in
Sections D.2 and D.3 have been satisfied or waived.
5. Fixed Assets. Those assets set forth on Exhibit A.5.
6. Governmental Approvals. Any order, permission, consent, approval,
license, authorization, registration, or validation of, or filing
with, or exemption by any governmental agency, commission, board or
public authority in connection with the sale of the Purchased Assets
from Seller to Purchaser, or the execution, delivery or performance
by the Seller of this Agreement or any other agreement or instrument
to be executed or delivered by Seller hereunder.
7. Material Adverse Effect. An effect that is reasonably likely to
result in a material diminution in value of the Purchased Assets
(excluding, however, any such Material Adverse Effect which results
from any announcement of the transactions contemplated by this
Agreement, which includes the effect of any announcement on any
customers, suppliers or employees, and general economic conditions).
8. Ordinary Course. With respect to the Seller's operations at the
Facility, the ordinary course of commercial operations customarily
engaged in by the Seller.
9. OSHA. The Federal Occupational Safety and Health Act of 1970.
10. Purchase Price. Eight Million Seven Hundred Thousand Dollars
($8,700,000.00).
11. Purchased Assets. The Fixed Assets and all books and records related
thereto.
12. Removal Plan. The Asset Removal Agreement in the form of Exhibit
A.12 hereto describing the process and procedures for removing the
Fixed Assets from the Facility.
13. Seller Liabilities. As defined in Section H.2(a).
14. Supply Agreement. The Supply Agreement between Seller and Purchaser
dated as of the date hereof.
B. Purchase and Sale of Assets.
1. Assets Being Purchased and Sold. Pursuant to the terms and
conditions provided herein, and in consideration of the covenants,
conditions and agreement of Purchaser contained herein, Seller shall
sell, convey, assign, and transfer to Purchaser, and Purchaser shall
purchase and acquire from Seller, the Purchased Assets.
2. Assumed Liabilities. The Purchaser shall not assume or be obligated
for any liability, obligation or commitment of Seller, direct or
indirect, known or unknown, absolute or contingent (the "Pre-Closing
Liabilities").
C. Purchase Price/Payment.
1. Amount. In reliance on the representations and warranties made herein by
Seller, subject to the terms and conditions of Section I, Purchaser agrees
to pay Seller the Purchase Price.
2. Payment. At the Closing, Purchaser shall pay to Seller, by wire transfer
of funds, the Purchase Price.
D. Closing
1. Closing/Transfer of Title. The Closing shall commence at 8:00 A.M.,
CST on the Closing Date. Title and risk of loss to the individual
Purchased Assets shall pass to Purchaser at the Closing.
2. Conditions Precedent to Purchaser's Obligation to Close. Purchaser's
obligation to consummate the purchase of the Purchased Assets and to
take the other actions required to be taken by Purchaser on the
Closing Date are subject to the satisfaction, at or prior to the
Closing Date, of each of the following conditions (any of which may
be waived by Purchaser, in whole or in part).
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(a) Seller's Performance. All of the covenants and obligations
that the Seller is required to perform or to comply with
pursuant to this Agreement and the Supply Agreement at or
prior to the Closing Date, including delivery to Purchaser of
all items described in Section D.4, must have been duly
performed and complied with in all material respects.
(b) No Proceedings. Since the date of this Agreement, there must
not have been commenced against Purchaser or Seller any
proceeding involving any challenge to, or seeking damages or
other relief in connection with, or which may have the effect
of preventing or delaying any of the transactions contemplated
in, this Agreement or the Supply Agreement.
(c) Release of Existing Liens. Any liens on the Purchased Assets
shall have been released and terminated at or prior to the
Closing, and Seller shall have received any consents required
to be obtained from the Seller's lenders.
(d) Stockholder Approval. The Seller's stockholders holding a
majority of the outstanding shares of common stock shall have
approved the sale of the Purchased Assets contemplated hereby.
For purposes of clarification, the accuracy of the Seller's
representations and warranties shall not be a condition to the
Purchaser's obligations to consummate the purchase of the Purchased
Assets, and Purchaser's sole remedy for any breach of any
representation or warranty by Seller hereunder shall be pursuant to
Section H.
3. Conditions Precedent to Seller's Obligation to Close. Seller's
obligation to consummate the sale of the Purchased Assets and to
take the other actions required to be taken by Seller on the Closing
Date is subject to the satisfaction, at or prior to the Closing
Date, of each of the following conditions (any of which may be
waived by Seller, in whole or in part).
(a) Accuracy of Representations. All of Purchaser's
representations and warranties in this Agreement must have
been accurate in all material respects as of the date of this
Agreement and as of the Closing Date as if made on the Closing
Date.
(b) Purchaser's Performance. All of the covenants and obligations
that the Purchaser is required to perform or to comply with
pursuant to this Agreement at or prior to the Closing Date,
including delivery to Seller of all items described in Section
D.5, must have been duly performed and complied with in all
material respects.
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(c) No Proceedings. Since the date of this Agreement, there must
not have been commenced against Seller or Purchaser any
proceeding involving any challenge to, or seeking damages or
other relief in connection with, or which may have the effect
of preventing or delaying any of the transactions contemplated
in, this Agreement or the Supply Agreement.
(d) Release of Existing Liens. Any liens on the Purchased Assets
shall have been released and terminated at or prior to the
Closing, and Seller shall have received any consents required
to be obtained from the Seller's lenders.
(e) Stockholder Approval. The Seller's stockholders holding a
majority of the outstanding shares of common stock shall have
approved the sale of the Purchased Assets contemplated hereby.
4. Deliveries of Seller. At Closing, Seller shall deliver to Purchaser,
in form and content reasonably satisfactory to Purchaser, the
following:
(a) copies of resolutions adopted by Seller's Board of Directors,
certified by the Secretary or Assistant Secretary of Seller,
authorizing the execution, delivery and performance of this
Agreement by Seller and authorizing and approving all other
transactions contemplated by this Agreement;
(b) the Xxxx of Sale;
(c) the Supply Agreement;
(d) the Removal Plan; and
(e) all such other resolutions, certifications, documents or
instruments as Purchaser or its counsel may reasonably request
to carry out the intent of this Agreement.
5. Deliveries of Purchaser. At Closing, Purchaser shall deliver to
Seller, in form and content reasonably satisfactory to Seller, the
following:
(a) payment by wire transfer of the Purchase Price;
(b) copies of resolutions adopted by Purchaser's board of
directors, certified by the Secretary of Purchaser,
authorizing the execution, delivery and performance of this
Agreement by Purchaser and authorizing and approving all other
transactions contemplated by this Agreement;
(c) the Supply Agreement;
(d) the Removal Plan; and
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(e) all such other resolutions, certifications, documents or
instruments as Seller or its counsel may reasonably request to
carry out the intent of this Agreement.
E. Covenants and Agreements
1. Access to Books and Records. After Closing, Seller and Purchaser
each will permit the other party and their representatives, upon
receipt of a written request a reasonable time in advance, including
but not limited to lawyers and accountants, during normal business
hours, to have access to and examine and make copies of the books
and records related to the Purchased Assets.
2. Liabilities. Subject to the terms of this Agreement, Seller agrees
to pay and shall discharge when due all Pre-Closing Liabilities.
Purchaser shall not assume, and Seller shall remain responsible for
all other Pre-Closing Liabilities and obligations of Seller.
3. Payment of Taxes. Seller shall be responsible for and shall pay all
federal, state, and local taxes, including, but not limited to, all
income, earnings, and property taxes, relating to Seller and the
Purchased Assets prior to the Closing Date. Purchaser shall be
responsible for and pay all such taxes relating to the Purchased
Assets payable for any period from and subsequent to the Closing
Date.
4. Sales Taxes. Seller shall report and pay all sales taxes, if any,
payable to the State of Florida in connection with the transactions
contemplated by this Agreement.
5. Bulk Sales Laws. Purchaser hereby agrees to waive Seller's
obligation to comply with any notification requirements of the bulk
sales law of Florida.
6. Removal of Assets. Seller shall comply with the provisions of the
Removal Agreement.
7. Employee Matters. Purchaser shall not be obligated to extend job
offers to any employees employed by Seller as of the Closing Date.
Seller shall be responsible for any notification and/or liability
under the Worker Adjustment and Retraining Notification Act and/or
any similar state statute or local laws in connection with the
consummation of the transactions contemplated hereunder.
8. Conduct of Business Until Closing. Except as the Purchaser may
otherwise consent to or approve in writing on and after the date
hereof and prior to the Closing Date, the Seller agrees:
(a) not to enter into discussions, and to discontinue all pending
discussions, relating to the disposition of any of the
Purchased Assets, other than in the Ordinary Course;
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(b) except in the Ordinary Course, not to sell, lease or grant any
option to sell or lease, give a security interest in or
otherwise create any encumbrance on any of the Purchased
Assets;
(c) not to enter into any agreement (conditional or otherwise) to
do any of the foregoing.
9. Further Assurances. From time to time after the Closing Date, at the
request of the other party hereto, and without further
consideration, each party hereto shall execute and deliver such
other instruments of conveyance and transfer and take such other
action as the other party hereto may reasonably request so as to
effectuate the transactions contemplated by this Agreement.
F. Representations and Warranties of Seller. Seller represents and warrants
to Purchaser that, except as set forth in the various Schedules provided
as a part of this Section F and attached hereto:
1. Organization. Seller is a corporation duly formed and validly
existing under the laws of the State of Delaware and has the power
and authority to carry on its business as now conducted, to own and
operate the Purchased Assets, to execute this Agreement and the
other agreements and instruments referred to in this Agreement that
it is executing and delivering, and, subject to the Seller obtaining
the approval of its stockholders holding a majority of the
outstanding shares of its common stock (the "Stockholder Approval"),
the Seller shall have the power and authority to carry out the
transactions contemplated hereby and thereby.
2. Enforceability. Subject to the Seller obtaining the Stockholder
Approval, the execution and delivery by Seller of this Agreement and
the other agreements and instruments referred to in this Agreement
have been duly authorized by the Seller's board of directors and
constitute legal, valid, binding, and enforceable agreements and
instruments of Seller, except as the enforceability thereof may be
affected by the laws of bankruptcy, insolvency, reorganization, or
similar laws affecting the rights of creditors generally.
3. No Violations. Except as set forth in Schedule F.3, neither the
execution, delivery, nor performance of this Agreement or any other
agreement or instrument executed and delivered by or on behalf of
Seller in connection herewith, nor the consummation of the
transactions herein or therein contemplated, nor compliance with the
terms and provisions hereof or thereof, (i) contravenes Seller's
certificate of incorporation or by-laws, (ii) to Seller's knowledge,
violates any statute, rule or regulation of any governmental
authority to which Seller is subject, (iii) contravenes any
judgment, decree or order applicable to Seller, (iv) conflicts or is
inconsistent with or will result in any breach of or constitute a
default under any contract, commitment, agreement, understanding,
arrangement, or instrument so as to have a Material Adverse Effect
on the Purchased Assets, or (v) will result in the creation or
imposition of (or the obligation to create or impose) any lien or
encumbrance on any of the Purchased Assets, or will increase any
such lien or encumbrance.
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4. Litigation. There are no actions, suits, grievances, arbitrations or
proceedings pending, or, to Seller's knowledge, threatened or
anticipated before any court or governmental or administrative body
or agency affecting the Purchased Assets and that are reasonably
likely to have a Material Adverse Effect. There are no outstanding
judgments, orders, writs, injunctions or decrees of any court,
governmental agency or arbitration tribunal against, involving or
affecting the Purchased Assets.
5. Compliance with Laws; Licenses; Governmental Approvals. Except as
set forth in Schedule F.5, the Seller is not required to obtain any
Governmental Approvals to operate the Purchased Assets, except where
the failure to obtain such Governmental Approval would not have a
Material Adverse Effect. Since January 1, 2004, and except as set
forth in Schedule F.5, there have been no inspections of the
Purchased Assets by any OSHA authority and no citations have been
issued under OSHA laws or regulations with respect to the Purchased
Assets.
6. Taxes. There are no tax liens or similar encumbrances of any type on
the Purchased Assets.
7. Contracts and Other Commitments. Schedule F.7 sets forth all
material contracts and other agreements that Seller is a party to
(written or oral) that affect or relate to the Purchased Assets.
Except as set forth in Schedule F.7, neither Seller nor, to Seller's
knowledge, the other party or parties thereto are in default under
any such agreement.
8. Title to Purchased Assets. Seller has and shall transfer to
Purchaser good and valid title to all of the Purchased Assets.
Except as disclosed on Schedule F.8, and except for taxes and
assessments not yet due and payable, none of the Purchased Assets is
subject to any lien, pledge, encumbrance, or charge of any kind.
Except as disclosed on Schedule F.8, no production assets at the
Facility are leased.
9. Restrictions on Purchased Assets or Premises. Seller is not a party
to, subject to, or bound by any contract, commitment or agreement
that prevents the use of any of the Purchased Assets for the
purposes currently used. To the knowledge of Seller, there are no
existing laws prohibiting the use of any Purchased Asset for its
current use.
10. Insurance Inspection. Schedule F.10 contains a copy of each
inspection report received by Seller within the last twenty four
(24) months from insurance underwriters or carriers regarding the
Purchased Assets.
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11. No Broker. No broker, finder, agent or similar intermediary has
acted for or on behalf of Seller in connection with this Agreement
or the transactions contemplated hereby.
12. Knowledge. As of the Closing Date, Seller is not aware of any claim
for indemnity it may have against Purchaser under Section H below.
G. Representations and Warranties of Purchaser. Purchaser represents and
warrants to Seller that:
1. Organization. Purchaser is a Wisconsin corporation, duly organized,
validly existing, and in good standing under the laws of the State
of Wisconsin and has the power and authority to carry on its
business, as now conducted, to own and operate its properties and
assets, to execute this Agreement and the other agreements and
instruments referred to in this Agreement that it is executing and
delivering, and to carry out the transactions contemplated hereby
and thereby.
2. Enforceability. The execution and delivery by Purchaser of this
Agreement and the other agreements and instruments referred to in
this Agreement have been duly authorized and constitute legal,
valid, binding, and enforceable agreements and instruments of
Purchaser, except as the enforceability thereof may be affected by
the laws of bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the rights of creditors generally.
3. No Violations. Neither the execution, delivery, nor performance of
this Agreement or any other agreement or instrument executed and
delivered by or on behalf of Purchaser in connection herewith, nor
the consummation of the transactions herein or therein contemplated,
nor compliance with the terms and provisions hereof or thereof, (i)
contravenes Purchaser's Articles of Incorporation or any provision
of law, (ii) violates any statute, rule, regulation, or order of any
court or governmental authority to which Purchaser is subject, (iii)
contravenes any judgment, decree, franchise, order, or permit
applicable to Purchaser, (iv) conflicts or is inconsistent with or
will result in any breach of or constitute a default under any
contract, commitment, agreement, understanding, arrangement, or
instrument, or (v) will result in the creation of or imposition of
(or the obligation to create or impose) any lien, encumbrance, or
liability on any of the property or assets of Purchaser, or will
increase any such lien, encumbrance, or liability.
4. No Broker. No broker, finder, agent or similar intermediary has
acted for or on behalf of Purchaser in connection with this
Agreement or the transactions contemplated hereby. No broker,
finder, agent or similar intermediary is entitled to any fee or
commission relating to the transactions contemplated by this
Agreement.
5. Knowledge. As of the Closing Date, Purchaser is not aware of any of
Seller's representations and warranties under the Agreement being
untrue or inaccurate, in whole or in part. In addition, as of the
Closing Date, Purchaser is not aware of any claim for indemnity it
may have against Seller under Section H below.
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H. Indemnification
1. Survival of Representations and Warranties. Seller's representations
and warranties (and the indemnities under Section H.2 relating
thereto) shall survive the Closing Date for twelve (12) months.
2. Indemnification by Seller. Seller indemnifies and agrees to hold
Purchaser harmless from, against and in respect of the following:
(a) Except with regard to the Assumed Liabilities, and except as
otherwise provided in this Agreement, all debts, liabilities,
or obligations of Seller, direct or indirect, fixed,
contingent, or otherwise existing before the Closing,
including, but not limited to, liabilities arising out of any
of the acts, transactions, circumstances, statement of facts,
or violation of law that occurred or existed before the
Closing, including without limitation, the Pre-Closing
Liabilities and Seller's obligations under applicable bulk
sales laws, whether or not then known, due, or payable and
irrespective of whether the existence thereof is disclosed to
Purchaser in this Agreement or any schedule hereto (the
"Seller Liabilities");
(b) Any and all losses, liabilities, deficiencies, or damages
suffered or incurred by Purchaser by reason of any untrue
representation or breach of warranty, or nonfulfillment of any
covenant or agreement by Seller contained in this Agreement or
in any certificate, document, or instrument delivered to
Purchaser hereunder or in connection herewith;
(c) Any and all losses, liabilities, deficiencies, or damages
suffered or incurred by Purchaser as a result of Seller's
failure to discharge the Seller Liabilities;
(d) Any claim for a finder's fee or brokerage or other commission
by any person or entity for services alleged to have been
rendered at the instance of Seller with respect to this
Agreement or any of the transactions contemplated hereby and
any and all losses, liabilities, deficiencies, or damages
suffered or incurred by Purchaser by reason of nonfulfillment
of any covenant or agreement by Seller contained in this
Agreement or in any other agreement delivered in connection
herewith;
(e) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including,
without limitation, reasonable legal fees and expenses,
incident to any of the foregoing or incurred in enforcing this
indemnity.
3. Indemnification by Purchaser. Purchaser hereby agrees to indemnify
and hold Seller harmless from, against, and in respect of:
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(a) Any and all debts, liabilities, or obligations of Purchaser,
direct or indirect, fixed, contingent, or otherwise accruing
on or after the Closing Date, including, without limitation,
the Assumed Liabilities;
(b) Any and all losses, liabilities, deficiencies, or damages
suffered or incurred by Seller resulting from any untrue or
inaccurate representation, breach of warranty, or
nonfulfillment of any covenant or agreement by Purchaser
contained in this Agreement or in any certificate, document,
or instrument delivered to Seller pursuant hereto or in
connection herewith;
(c) Any and all losses, liabilities, deficiencies, or damages
suffered or incurred by Seller as a result of Purchaser's
failure to discharge the Assumed Liabilities;
(d) Any claim for a finder's fee or brokerage or other commission
by any person or entity for services alleged to have been
rendered at the instance of Purchaser with respect to this
Agreement or any of the transactions contemplated hereby;
(e) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including,
without limitation, reasonable legal fees and expenses,
incident to any of the foregoing or incurred in enforcing this
indemnity.
4. Third-Party Claims.
(a) In respect of, arising out of, or involving a claim made by
any person, firm, governmental authority, or corporation other
than the Purchaser or Seller against the indemnified party
("Third-Party Claim"), the indemnified party must notify the
indemnifying party in writing of this Third-Party Claim
promptly after receipt by the indemnified party of written
notice of the Third-Party Claim. Thereafter, the indemnified
party shall promptly deliver to the indemnifying party copies
of all notices relating to the Third-Party Claim.
(b) If a Third-Party Claim is made against an indemnified party,
the indemnifying party shall assume the defense thereof with
counsel selected by the indemnifying party, provided such
counsel is not reasonably objected to by the indemnified
party. The indemnified party shall cooperate fully with the
indemnifying party in connection with such defense.
(c) In no event will the indemnified party admit any liability
with respect to, or settle, compromise, or discharge, any
Third-Party Claim without the indemnifying party's prior
written consent, and the indemnified party will agree to any
settlement, compromise, or discharge of a Third-Party Claim
that the indemnifying party may recommend that releases the
indemnified party completely in connection with the
Third-Party Claim.
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(d) The indemnified party shall be entitled to participate in, but
not control, the defense with its own counsel at its own
expense. If the indemnifying party does not assume the defense
of any such Third-Party Claim, the indemnified party may
defend the claim in a manner as it may deem appropriate,
including, but not limited to, settling the claim or
litigation after giving notice of it to the indemnifying party
on such terms as the indemnified party may deem appropriate,
and the indemnifying party will reimburse the indemnified
party promptly in accordance with the provisions of this
Section H.
(e) The failure of either party to provide timely notice hereunder
shall not defeat the right to indemnification if the late
notice does not result in prejudice, and if so, only to the
extent of the prejudice.
5. Sole Remedy. Except in connection with any fraudulent
misrepresentation by either party proven by the other in a court of
competent jurisdiction, or with respect to Third Party Claims, to
which the limitations of this subparagraph do not apply, Purchaser
and Seller agree that their sole remedy after Closing, whether in
respect to a breach of warranty, representation or covenant by
Seller or Purchaser hereunder, shall be limited to rights of
indemnification pursuant to Sections H.2 and H.3. Purchaser and
Seller shall use commercially reasonable efforts to mitigate the
losses, costs, expenses and damages to which either may become
entitled to indemnification hereunder.
6. Direct Damages. The indemnification obligations of the parties
pursuant to this Section H shall be limited to direct damages, loss,
claims, liabilities, demands, charges, suits, penalties, costs and
expenses and shall not include incidental, consequential, indirect,
punitive or exemplary damages.
I. Alternative Transactions. If, at the stockholders meeting held for the
purpose of approving of the sale of the Purchased Assets to Purchaser
pursuant to the terms hereof, Seller's stockholders holding a majority of
the outstanding shares of common stock do not approve the sale of the
Purchased Assets contemplated hereby, then, as soon as is reasonably
practicable thereafter, the Seller and Purchaser shall consummate one of
the following transactions (each, an "Alternative Transaction"):
1. Seller shall sell to Purchaser, and Purchaser shall purchase from
Seller, the Alternative Assets listed on Exhibit I.1 for an
aggregate purchase price of $2,115,000. The only conditions to
either Party's obligations to consummate the sale of Alternative
Assets pursuant to this Section I.1 (other than payment of the
purchase price therefore) shall be the release and termination of
any liens with respect to the Alternative Assets and Seller's
receipt of any consents required to be obtained from the Seller's
lenders (collectively, the "Releases and Consents").
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2. In the event that the parties are unable to obtain the Releases and
Consents with respect to the sale of the Alternative Assets as
contemplated by Section I.1, then the parties shall negotiate in
good faith to make such Alternative Assets available for use by the
Purchaser on a basis and for such period (not to exceed 180 days)
that are reasonably acceptable to each of the Seller and Purchaser;
provided, however, that Purchaser shall use its commercially
reasonable efforts to obtain equipment that serves the same
functions as the Alternative Assets prior to the expiration of the
agreed upon period of time. The only additional conditions to either
Party's obligations to consummate the arrangements contemplated by
this Section I.2 shall be the Releases and Consents.
J. Termination. This Agreement may be terminated at any time prior to the
Closing or the consummation of an Alternative Transaction:
1. by mutual written agreement of Seller and Purchaser;
2. automatically upon written notice of termination of the Supply
Agreement given pursuant to Section VII.C thereof.
K. Miscellaneous.
1. Expenses. Except as specifically set forth in this Agreement to the
contrary, all fees and expenses incurred by Seller in connection
with this Agreement will be borne by Seller and all fees and
expenses incurred by Purchaser in connection with this Agreement
will be borne by Purchaser.
2. Parties In Interest. This Agreement will be binding on and inure to
the benefit of the parties hereto. Neither this Agreement, nor the
parties' rights and obligations hereunder, may be assigned by any
party to any third party without the other party's prior written
consent, provided, however, consent to assignment shall not be
required with respect to an assignment to a purchaser of all or
substantially all of the assets of either Seller or Purchaser, as
the case may be.
3. Entire Agreement; Amendments. This Agreement and the agreements and
schedules referred to in this Agreement contain the entire
understanding of the parties with respect to the subject matter of
this Agreement. There are no restrictions, agreements, promises,
warranties, covenants, or undertakings other than those expressly
set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
its subject matter. This Agreement may be amended only by a written
instrument duly executed by the parties or their successors or
assigns.
4. No Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving
such waiver, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or a similar nature.
5. Headings. The section and paragraph headings contained herein are
for the convenience of the parties only and are not intended to
define or limit the contents of their sections and paragraphs.
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6. Applicable Law. This Agreement and all amendments thereof shall be
governed by and construed in accordance with the laws of the State
of Wisconsin applicable to contracts made and to be performed
therein.
7. Notices. All notices, claims, certificates, requests, demands, and
other communications under this Agreement will be in writing and
notices will be deemed to have been duly given if delivered or
mailed, registered or certified mail, postage prepaid, return
receipt requested, or for overnight delivery, by a nationally
recognized overnight mail service, as follows:
If to Purchaser to: Xxxxxxxxx Foods, Inc.
Attn: Xxx Xxxxxxx
000 Xxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxx 00000
Xxx.Xxxxxxx@XxxxxxxxxXxxxx.xxx
If to Seller to: Galaxy Nutritional Foods, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxx
e-mail: xxxxxxx@xxxxxxxxxxx.xxx
with a copy (which shall not constitute notice)to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esquire
e-mail: xxxxxxx@xxxxxxxxx.xxx
or to such other address as the party to whom notice is to be given
previously may have furnished to the other party in writing in the
manner set forth in this section.
8. Joint Announcement. The Seller and Purchaser shall agree on the form
and substance of all joint press releases or other public
announcements of matters related to this Agreement or any of the
transactions contemplated hereby that shall be released on or after
the Closing; provided, however, that nothing in this Section J.8
shall be deemed to prohibit any party hereto from making any
disclosure required by law.
9. Severability. If any term, condition, or provision of this Agreement
shall be declared invalid or unenforceable, the remainder of the
Agreement, other than such term, condition, or provision, shall not
be affected thereby and shall remain in full force and effect and
shall be valid and enforceable to the fullest extent permitted by
law.
13
10. Definition of Knowledge. For purposes of this Agreement, the phrases
"to the best of the Seller's knowledge," "to the Seller's
knowledge," "to the knowledge of the Seller," "know," or similar
words and phrases referring to facts or other information known by
the Seller shall be deemed to mean and refer to facts and
information within the actual knowledge of those individuals listed
on Exhibit K.10.
14
IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase
Agreement to be duly executed as of the day and year first above written.
SELLER PURCHASER
GALAXY NUTRITIONAL FOODS, INC. XXXXXXXXX FOODS, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxx Xxxxxxx
-------------------------- ---------------------------
Name: Xxxxx X. Xxxxx Name: Xxx Xxxxxxx
Its: Chairman Its: President and COO of
Xxxxxxxxx Chain Sales
Exhibit A.5
FIXED ASSETS
DESCRIPTION VENDOR/MANUFACTURER Asset #
--------------------------------------------------------------------------------------------------
(2) CC - 1000# cheese cookers Blentech Corp. 193
Hayssen packaging machine Hayssen Manufacturing 194
(4) 200 gal. & (2) 500 gal. Kettles w/t agitators Xxx Process Systems 199
System 1, Kustner IWS machine Kustner Industries 377,393
Wrapping machine, WS-20 Series II Sasib 378
Blentech Hard Cheese System Blentech Corp. 466
System 2, 1600 SPM IWS Machine (Hardware) Kustner Industries 480,492
System 5, Ribbon - Pullman Xxxx Design & Mfg. Inc. 1179
System 5, Xxxx Casing Linc. Pulman Machine Xxxx Design & Mfg. Inc. 1418
3 CC-1000 Cheeztherm cheese cookers Blentech Corp. 1674
System 0, Xxxxx Xxxx X.X. Xxxxxxxx, Inc. 1937
Systems 9 and 11, Slice Lines Xxxx Design & Mfg. Inc. 1938
System 12, Cup Line Modern Packaging 1939
System 10, Block Line/String Cheese Line Xxxxxx Xxxxxx 2048
System 13, Shred Line Hayssen Manufacturing 2049
Xxxxx Vac Machine Amplicon/Calfirst 2159,2186
Hayssen Shred Bagger GE Capital 2068
Exhibit I.1
ALTERNATIVE ASSETS
DESCRIPTION VENDOR/MANUFACTURER Asset #
--------------------------------------------------------------------------
Blentech Hard Cheese System Blentech Corp. 466
System 12, Cup Line Modern Packaging 1939
System 13, Shred Line Hayssen Manufacturing 2049
Hayssen Shred Bagger GE Capital 2068
