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EXHIBIT 10.2
Execution Copy
ASSIGNMENT AND ASSUMPTION AGREEMENT RELATING TO
STOCK PURCHASE AND MERGER AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made
and entered into this 4th day of September, 1997, by and between Mid-America
Dairymen, Inc., a Kansas corporative marketing association ("Assignor"), and
Southern Foods Group, L.P., a Delaware limited partnership ("Assignee").
WHEREAS, Assignor desires to assign to Assignee certain of Assignor's
rights and obligations under that certain Stock Purchase and Merger Agreement
(the "Purchase Agreement") dated as of May 22, 1997, among Assignor,
Xxxxxx/Meadow Gold Dairies Holdings, Inc, ("Holdings"), BDH Two, Inc. and
Xxxxxx, Inc. (collectively, "Xxxxxx"), relating to the proposed license of
certain trademarks from Xxxxxx to Assignor; and
WHEREAS, Assignee desires to assume such rights and obligations of
Assignor under the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, covenants
and undertakings of the parties herein contained, it is agreed as follows:
1. ASSIGNMENT. Effective 2:00 p.m. on September 4, 1997 (the
"Effective Time"), Assignor hereby assigns to Assignee (the "Assignment") all
of Assignor's right, title and interest under the Purchase Agreement with
respect to the Trademark License Agreement as defined in, and attached as
Exhibit B to, the Purchase Agreement (as amended, the "Xxxxxx Trademark License
Agreement").
2. ASSUMPTION. As of the Effective Time, Assignee hereby accepts
the assignment of such right, title and interest with respect to the Xxxxxx
Trademark License Agreement and agrees to assume all obligations relating
thereto (the "Assumption"). As part of the Assumption, Assignee hereby (i)
agrees to execute the Xxxxxx Trademark License Agreement at the Closing of the
Purchase Agreement, (ii) assumes and agrees to pay, perform and discharge the
duties of the Assignor under the Xxxxxx Trademark License Agreement, when and
as the same become due, including, but not limited to, payment to Xxxxxx on
behalf of Assignor of a portion of the consideration due to Xxxxxx under the
Purchase Agreement, which payment shall be equal to $55,000,000, the appraised
fair value of the trademarks assigned under the Xxxxxx Trademark License
Agreement as determined by an independent appraisal of such marks obtained by
Assignor in connection with the transactions contemplated by the Purchase
Agreement (the "Partial Payment of the Purchase Price").
3. COVENANTS. In connection with the Assignment and Assumption,
Assignee hereby agrees to:
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(a) at the Closing of the Purchase Agreement, execute the Meadow
Gold Trademark License Agreement as defined in, and attached
as Exhibit D to, the Purchase Agreement;
(b) execute the Milk Products Sublicense Agreement in the form
attached hereto as EXHIBIT A; and
(c) execute the Milk Products Trademark License Agreement in the
form attached hereto as EXHIBIT B.
4. ACKNOWLEDGMENT PURSUANT TO PURCHASE AGREEMENT. Pursuant to
Section 9.6 of the Purchase Agreement, Assignor and Assignee hereby agree with
Xxxxxx as follows:
(a) Assignee hereby agrees to be bound by, and to comply with, all
of Assignor's obligations under the Purchase Agreement
relating to, or arising out of, the execution of the Xxxxxx
Trademark License Agreement; and
(b) Assignor hereby agrees that this Agreement shall not relieve
Assignor of any of its obligations under the Purchase
Agreement, and that Assignor shall be bound by the Xxxxxx
Trademark License Agreement and obligated to Xxxxxx under the
Xxxxxx Trademark License Agreement as if it were Licensee under
the Xxxxxx Trademark License Agreement.
5. BINDING. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, legal
representatives and assigns.
6. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed by its duly authorized officer as of the day and year first above
written.
ASSIGNOR:
MID-AMERICA DAIRYMEN, INC.
By: /s/ XXXXXX X. XXX
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Xxxxxx X. Xxx,
Corporate Vice President - Finance
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ASSIGNEE:
SOUTHERN FOODS GROUP, L.P.
BY SFG MANAGEMENT LIMITED
LIABILITY COMPANY, ITS GENERAL
PARTNER
BY: /s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx, Assistant Secretary
Pursuant to Section 9.6 of the Purchase Agreement, Xxxxxx, Inc., BDH Two, Inc.,
and Holdings execute this Agreement for the limited purpose of consenting (the
"Consent") to this Agreement and the other terms and conditions set forth
herein. This Consent shall include, but not be limited to, (i) consent to the
substitution of Assignee as the Licensee under the Xxxxxx Trademark License
Agreement, and (ii) consent to the receipt of the Partial Payment of the
Purchase Price from the Assignee which shall be applied toward the Assignor's
obligations under the Purchase Agreement.
XXXXXX, INC.
By: /s/ X.X. XXXXXX
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Name: X.X. Xxxxxx
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Its: VP - Corporate Development
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BDH TWO, INC.
By: /s/ X.X. XXXXXX
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Name: X.X. Xxxxxx
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Its: Attorney in Fact
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XXXXXX/MEADOW GOLD DAIRIES HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
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Its: President/CEO
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