ASSET PURCHASE AGREEMENT
Exhibit
4.25
Asset
Purchase Agreement by and between J & J Snack Foods and Integrated Brands,
Inc.
This
ASSET PURCHASE AGREEMENT (this “Agreement”) is made as of the 30th day of
March, 2007
by and among J & J SNACK FOODS SALES CORP., a New Jersey corporation (the
“Buyer”) and INTEGRATED BRANDS, INC., a New Jersey corporation (the
“Seller”).
WITNESSETH:
WHEREAS,
Seller has a product known as WholeFruit (the “Brand”) under which it has
produced various frozen novelties;
WHEREAS,
pursuant to a certain license agreement (the “License Agreement”) between
Dogsters, LLC and the Seller dated April 20, 2004, the Seller has acquired
certain rights with respect to the manufacture and sale of certain ice cream
products branded as Dogsters (“Dogsters”);
WHEREAS,
Seller desires to sell to Buyer certain assets relating to the Brand and
to
Dogsters (as hereinafter defined, the “Purchased Assets”); and
WHEREAS,
Buyer desires to acquire the Purchased Assets from Seller;
NOW,
THEREFORE, in consideration of the mutual covenants and upon the terms and
subject to the conditions set forth herein, Buyer and Seller agree as
follows:
ARTICLE
I
Purchase
and Sale, Payment
1.1 Purchase
and Sale
Subject
to the terms and conditions hereof, Seller shall sell, assign, transfer and
deliver to Buyer or at Buyer’s election, to an affiliate of Buyer, and Buyer
shall purchase, pay for and accept from Seller, all of the Purchased
Assets. The Purchased Assets shall be sold, assigned, transferred and
delivered free and clear of all Liens. The Purchased Assets shall include,
as
the same exist on the Closing Date:
(a) all
of Seller’s papers, books and records in whatever form (e.g., computerized
information and written information), relating to the Brand, including, without
limitation, sales records, invoices, credit records, customer lists and records,
supplier lists and records, price lists, purchasing materials and records,
personnel, labor relations and payroll records, warranty and service records,
accounting and financial records, inventory records, accounts receivable
and
accounts payable records and files, tax records and litigation files wherever
located relating to the Brand;
(b) the
finished goods, raw materials, and packaging inventories of the Seller relating
to the Brand (the “Inventory”), as well as the marketing and sales literature of
the Seller, listed on Schedule “1.1(b)”;
(c) certain
inventory relating to Dogsters, listed on Schedule “1.1(b)”;
(d) all
of the Seller’s right title and interest in and to the License Agreement (the
“Dogsters Rights”), on such terms and conditions as are set out in a certain
assignment agreement (the “Assignment Agreement”) between the Seller
and the Buyer dated the date hereof; and
(e) the
goodwill, if any, of Seller relating to the Brand, including, without
limitation, all intellectual property of the Seller relating to the
Brand.
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1.2 Non-Assumption
of Liabilities By Buyer
Seller
hereby retains liability for and agrees to be solely liable for, and Buyer
shall
not be liable for, any and all debts, responsibilities, obligations or
liabilities of, or claims against the Seller or its affiliates relating to
the
Brand of any kind or nature, known, unknown, contingent or otherwise arising
prior to the Closing Date or with respect to any period ending on or prior
to
the Closing Date.
1.3 Consideration,
Allocation, Election
(a) The
consideration for the Purchased Assets payable by the Buyer (collectively,
the
“Consideration”) at the Closing, shall consist of Three Million U.S. Dollars
(US$3,000,000.00).
(b) The
Consideration specified in this Section 1.3 above shall be allocated, as
among
the Purchased Assets, in accordance with Schedule 1.3, and the parties shall
abide by such allocations in all tax filings and other reports which the
parties
shall make or render. Buyer and Seller hereby agree that the
allocations set forth on Schedule 1.3 have been fully and finally negotiated
by
Buyer and Seller and their respective representatives with knowledge of and
due
regard for all relevant factors.
(c) The
Consideration shall be paid by wire transfer at Closing.
ARTICLE
II
Representations
and Warranties of the Seller
The
Seller represents and warrants to the Buyer as follows:
2.1 Organization
and Good Standing
The
Seller is a duly-organized and validly existing corporation in good standing
under the laws of the State of New Jersey, with full power and authority
to own
the Purchased Assets.
2.2 Binding
Agreement: No Litigation
This
Agreement has been duly executed and delivered by the Seller and is a valid
and
binding obligation and agreement of the Seller enforceable in accordance
with
its terms (except as enforceability may be limited by bankruptcy, insolvency,
conservatorship, receivership, liquidation, reorganization, moratorium or
similar laws affecting creditors rights generally). The execution,
delivery and performance of this Agreement and the transactions contemplated
hereby by the Seller, as applicable: (a) will not violate, contravene, result
in
a breach of or constitute a default (with due notice or lapse of time or
both)
under the Certificate of Incorporation or Bylaws of the Seller, or any note,
mortgage, contract, instrument, judgment, law, rule, regulation or decree
to
which Seller is a party or by which any of them or the Purchased Assets is
bound, (b) will not afford any lender the right to accelerate, declare at
once
due and payable or demand prepayment of (or any penalty, charge or premium
with
respect to) any indebtedness of the Seller and (c) has been duly approved
by all
necessary corporate action on the part of the Seller, including, without
limitation, by the Board of Directors of the Seller. No consent,
permit, authorization, approval or action of any federal, state or local
authority or any other Person is required with respect to the Seller in
connection with the consummation of the transactions contemplated by this
Agreement. The Seller is not a party to (and has no knowledge of) any
litigation or other claim or proceeding which calls into question the validity
or enforceability of this Agreement or seeks to delay or prevent any transaction
contemplated hereby.
2.3 Absence
of Claims
Except
as provided in Schedule 2.3 attached hereto, no action,
suit, proceeding, investigation or claim (including, without limitation,
assertion of any claim for taxes, interest or penalties) is pending or to
the
Knowledge of Seller, threatened against or with respect to the Brand or the
Purchased Assets, nor to the knowledge of Seller, is there any valid basis
for
any such action, suit, proceeding, investigation or claim.
2.4 Title
to Assets: Condition of Assets
(a) The
Seller has good and marketable title to all Purchased Assets, free and clear
of
any lien, mortgage, security interest, charge, pledge, retention of title
agreement, adverse claim, easement, encroachment, restrictive covenant or
other
encumbrance affecting title to any property of any sort (any such encumbrance,
a
“Lien”) and no other person, firm, corporation, partnership, association,
governmental or judiciary agency or other entity (any such person or entity,
a
“Person”) has or will have at Closing any interest whatsoever in any of the
Purchased Assets. Notwithstanding any other provision of this
Agreement, the Seller makes no representations or warranties whatsoever with
respect to the Dogsters Rights, other than as explicitly set out in the
Assignment Agreement.
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(b) The
Inventory included in the Purchased Assets has been acquired in the ordinary
course of the Seller’s business.
2.5 Intellectual
Property
(a) Seller
owns all Intellectual Property necessary relating to the Brand as presently
conducted. Each item of Intellectual Property owned or used by Seller
with respect to the Brand immediately prior to the Closing hereunder will
be
owned or available for use by Buyer on identical terms and conditions
immediately subsequent to the Closing hereunder. The Seller has taken
all necessary action to maintain and protect each item of Intellectual Property
with respect to the Brand that it owns or uses.
(b) Seller,
in its operations relating to the Brand, has not interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any Intellectual
Property rights of third parties, and none of Seller’s directors and officers
(and employees with responsibility for Intellectual Property matters) of
Seller
has ever received any charge, complaint, claim, demand or notice alleging
any
such interference, infringement, misappropriation, or violation (including
any
claim that Seller must license or refrain from using any Intellectual Property
rights of any third party). To the knowledge of Seller, no third
party has interfered with, infringed upon, misappropriated, or otherwise
come
into conflict with any Intellectual Property rights of any of
Seller.
(c) Schedule
“2.5(c)” identifies each patent or registration, including, without limitation,
each trademark registration, which has been issued to Seller with respect
to any
of the Intellectual Property, identifies each pending patent application
or
application for registration which Seller has made with respect to any of
the
Intellectual Property, and identifies each license, agreement, or other
permission which Seller has granted to any third party with respect to any
of
its Intellectual Property (together with any exceptions). Seller has
delivered to Buyer correct and complete copies of all such patents,
registrations, trademark registrations, applications, licenses, agreements,
and
permissions (as amended to date) and has made available to Buyer correct
and
complete copies of all such other written documentation evidencing ownership
and
prosecution (if applicable) of each such item. Schedule 2.5(c) also
identifies each trade name or unregistered trademark used by Seller in
connection with the Brand. With respect to each item of Intellectual
Property required to be identified in Schedule “2.5(c)”:
(i) Seller
possesses all right, title and interest in and to such item, free and clear
of
any Security Interest, license or other restriction;
(ii) such
item is not subject to any outstanding injunction, judgment, order, decree,
ruling or charge;
(iii) no
action, suit, proceeding, hearing, investigation, charge, complaint, claim
or
demand is pending to the knowledge of Seller or is threatened with challenges
the legality, validity, enforceability, use, or ownership of such item;
and
(iv) Seller
has not ever agreed to indemnify any Person for or against any interference,
infringement, misappropriation or other conflict with respect to such
item.
(d) “Intellectual
Property” means with respect to the Brand (i) all inventions (whether patentable
or unpatentable 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, (ii) 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, (iii) all copyrightable works, all copyrights,
and all applications, registrations and renewals in connection therewith
and
(iv) 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), (vi) all computer software
(including data and related documentation), (vii) all other proprietary rights
and (viii) all copies and tangible embodiments thereof (in whatever form
or
medium).
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2.6 Brokers
The
Seller is not under any obligation to any broker, finder or other intermediary
in connection with the sale of the Purchased Assets that would cause the
Buyer
to become liable for payment of any fee or expense with respect
thereto.
2.7 Disclosure
`No
representation or warranty of the Seller in this Agreement or in any
certificate, schedule, statement or other document furnished or to be furnished
by the Seller to the Buyer pursuant hereto or in connection with the
transactions contemplated hereby contains or will contain any untrue statement
of a material fact or omits or will omit to state any material fact required
to
be stated herein or therein or necessary to make the statements herein or
therein not misleading.
ARTICLE
III
Representations
and Warranties of the Buyer
The
Buyer hereby represents and warrants to the Seller as follows:
3.1 Organization
and Good Standing
Buyer
is a duly organized and validly existing corporation in good standing under
the
laws of the State of New Jersey, Buyer is duly qualified to do business as
a
foreign corporation and is in good standing in each jurisdiction in which
it
owns or leases real property or in which the conduct of its business requires
such qualification, except where the failure to so qualify could not reasonably
be expected to cause a material adverse effect on the business or operations
of
Buyer.
3.2 Binding
Agreement: No Litigation
This
Agreement has been duly executed and delivered by Buyer and is a valid and
binding obligation and agreement of Buyer enforceable in accordance with
its
terms (except as enforceability may be limited by bankruptcy, insolvency,
conservatorship, receivership, liquidation, reorganization, moratorium or
similar laws affecting creditors rights generally). The execution,
delivery and performance of this Agreement by Buyer, including the purchase
of
the Purchased Assets and assumption of the Assumed Liabilities hereunder,
will
not violate, contravene, result in a breach of or constitute a default (with
due
notice or lapse of time or both) under the Articles of Incorporation or By-Laws
of the Buyer, or any note, mortgage, contract, instrument, judgment, law,
rule,
regulation or decree to which the Buyer is a party or by which the Purchased
Assets are bound.
3.3 Brokers
Buyer
is not under any obligation to any broker, finder or other intermediary in
connection with the purchase of Purchased Assets or assumption of the Assumed
Liabilities, which would cause Seller to become liable for payment of any
fee or
expense with respect thereto.
3.4 Disclosure
No
representation or warranty of the Buyer in this Agreement or in any certificate,
schedule, statement or other document furnished or to be furnished by the
Buyer
to the Seller pursuant hereto or in connection with the transactions
contemplated hereby contains or will contain any untrue statement of a material
fact or omits or will omit to state any material fact required to be stated
herein or therein or necessary to make the statements herein or therein not
misleading.
ARTICLE
IV
Closing:
4.1 Place
and Date of Closing. The consummation of the transactions
contemplated by this Agreement (the “Closing”) shall take place on March 30,
2007 (the date of the Closing being referred to herein as the “Closing
Date”).
4.2 Actions
at Closing. At the Closing, there shall be made, by all necessary and
appropriate persons, all payments and deliveries stated in this Agreement
to be
made at the Closing and/or on or prior to the Closing Date.
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ARTICLE
V
Indemnification
5.1 Indemnification
by the Seller
(a) The
Seller hereby agrees to jointly and severally defend, indemnify and hold
Buyer
and its officers, directors, employees, agents, attorneys and representatives
(individually, a “Buyer Indemnitee” and, collectively, the “Buyer Indemnitees”),
harmless from and against any damages, liabilities, losses and expenses,
including, without limitation, reasonable attorney’s fees (collectively, “Seller
Losses”), which may be sustained or suffered by Buyer arising out of, based
upon, or by reason of a breach of any representation or warranty, or failure
to
perform any agreement or covenant made by the Seller in this Agreement or
in any
agreement or document pursuant hereto or arising out, based upon, or by reason
any claim, action or proceeding asserted or instituted or growing out of,
any
matter or thing covered by such representations, warranties or
covenants. Without limiting the foregoing, the Seller hereby agrees
to jointly and severally defend, indemnify and hold each Buyer Indemnitee
harmless from any debts, responsibilities, obligations or liabilities of
or
claims against the Seller arising or with respect to periods ending on or
prior
to the Closing Date.
5.2 Notice:
Defense of Claims
Each
party of this Agreement shall give prompt written notice to the other party
or
parties to this Agreement under each claim for indemnification hereunder
specifying the amount and nature of the claim and any matter which is likely
to
give rise to an indemnification claim. Each party to this Agreement
has the right to participate at his or its own expense in the defense of
any
such matter or settlement, or the indemnified party may direct the indemnifying
party to take over the defense of such matters so long as such defense is
expeditious. Failure to give timely notice of a matter which may give
rise to an indemnification claim shall not affect the rights of the indemnified
party to collect such claim from the indemnifying party so long as such failure
to so notify does not materially adversely affect the indemnifying party’s
ability to defend such claim against the third party. No indemnifying
party, in the defense of any claim or litigation, shall, except with the
consent
of an indemnified party, which consent shall not be unreasonably withheld
or
delayed, consent to entry of any judgment or enter into any settlement by
which
such indemnified party is to be bound and which judgment or settlement does
not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability and respect to
such
claim or litigation.
5.3 Exclusive
Remedy
Except
as provided below, the parties have acknowledged and agree that the exclusive
remedy of one party against the other party for any matter rising under this
Agreement or the transactions contemplated hereby as a remedy expressly provided
in this Article V and such other party shall have no other obligation with
respect thereto. Notwithstanding the foregoing, a party shall have
the right to specifically enforce a provision of this Agreement either pursuant
to Article 5 or otherwise. The foregoing notwithstanding, the
provisions of this Section 5.3 shall not apply in the case of fraud or
intentional misrepresentation on the part of any party to this
Agreement.
ARTICLE
VI
Miscellaneous
6.1 Materiality
and Survival Period
All
of the Buyer’s and the Seller’s respective representations and warranties set
forth in this Agreement shall be deemed to have been material and relied
upon by
the party to whom made and shall survive Closing and remain in full force
and
effect after the Closing Date and shall expire upon the second anniversary
of
the Closing Date.
6.2 Expenses
The
Buyer, on the one hand, and the Seller, on the other, shall each pay all
of its
own respective costs and expenses incurred or to be incurred by them,
respectively, in negotiating and preparing this Agreement and in closing
and
carrying out the transactions contemplated by this Agreement. Seller
shall not pay any such expenses.
6.3 Notices
All
notices, requests, demands, instructions and other communications hereunder
shall be in writing and shall be deemed to be effective only if delivered
by
hand, by facsimile transmission, by nationally-recognized overnight courier
service or by prepaid United States registered or certified mail, return
receipt
requested, as follows:
(a) If
to Seller, to:
Integrated
Brands, Inc.
000
Xxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxx, Xxxxxx
0
X0X
0X0
Attn: Xxxxxxx
Xxxxxxx
Facsimile
No. 905-479-5235
with
a copy to:
Xxxxxxx
Xxxxxxx, Barrister and Solicitor
000
Xxxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxx,
Xxxxxx
X0X
0X0
Attn: Xxxxxx
Xxxxxxxxxx
Facsimile
No. 000-000-0000
(b) If
to Buyer, to:
J
& J Snack Foods Sales Corp.
c/o
J & J Snack Foods Corp.
0000
Xxxxxxx Xxxxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Attn: Xxxxxx
X. Xxxxxxxx, Chairman of the Board
Facsimile
No. 000-000-0000
With
a copy to:
Xxxxxxx/Xxxxxxxxx
P.C.
000
Xxxxxx Xxxxxx Xxxx
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
Attn: A.
Xxxx Xxxxxxxxxx, Esquire
Facsimile
No. 856-661-1919
or
to such other address as Seller or Buyer may specify by written notice to
the
other from time to time in accordance with this Agreement. Such notices,
requests, demands and other communication hereunder shall be deemed to have
been
duly given upon receipt thereof.
7.4 Governing
Law: Arbitration
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York, without giving effect to the principles of
conflict of laws.
Any
dispute arising out of or relating to this Agreement, including, without
limitation, the interpretation of any provision of this Agreement or the
breach,
termination or validity hereof (a “Dispute”) shall be settled finally by an
arbitration proceeding conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (the “AAA”) then in effect (the
“AAA Rules”); provided that the provisions hereof shall be controlling in the
event of any conflict with the AAA Rules. Any arbitration proceeding pursuant
to
this Section 10(b) shall be conducted in Manhattan, in the State of New York
before a single arbitrator (the “Panel”) selected by the AAA.
At
any oral hearing of evidence in connection with the arbitration, a party
shall
have the right to examine its witnesses and to cross-examine the witnesses
of
the opposing party. No evidence of any witness shall be presented in written
form unless the opposing party shall have the opportunity to cross-examine
such
witness, except as the parties otherwise agree in writing or except under
extraordinary circumstances where the Panel determines that the interests
of
justice require a different procedure.
Subject
to Sections 5.3, any decision or award of the Panel (an “Arbitral
Decision”) shall be final and binding upon the parties. The parties
hereby waive to the extent permitted by law any rights to appeal such decision
or award to, or the review of such decision or award by, any court or
tribunal. An Arbitral Decision may be enforced against the Parties
and/or their respective assets in any court having proper
jurisdiction.
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THE
PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING
OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT
OR
OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH
WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR
AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY
PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
7.5 Successors
and Assigns
The
rights created by this Agreement shall inure to the benefit of, and the
obligations created hereby shall be binding upon, the successors, heirs and
assigns of the respective parties hereto.
7.6 Entire
Agreement: Severability and Enforcement
This
Agreement and the instruments delivered pursuant hereto constitute the entire
agreement between the parties and supersede all prior agreements and
understandings, written or oral, between the parties relating to the subject
matter hereof. This Agreement may be amended or supplemented only by
a writing signed by all of the parties hereto.
Each
provision of this Agreement is severable. If any provision of this
Agreement is found to be unenforceable or in violation of any statute, rule,
regulation, order or decree of any governmental authority, court or agency,
then
such provision shall be modified to the minimum extent necessary so as to
render
it enforceable and cure such violation, and all other provisions hereof shall
remain in full force and effect notwithstanding such violation.
7.7 Further
Assurances
In
order to more fully assure the Buyer of the benefit of acquiring the Purchased
Assets hereunder, the Seller hereby agrees to provide to the Buyer, whether
before or after Closing, such confirmations of fact, records, certificates
and
other documents and things as may be reasonably requested by the Buyer to
demonstrate the Buyer’s legal and beneficial ownership of the Purchased Assets
and to otherwise carry out the purposes of this Agreement.
7.8 Headings
The
headings contained in this Agreement are for convenience of reference only
and
the headings shall not be considered a part of this Agreement or used to
construe any provision hereof.
7.9 Counterparts
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which, taken together, shall constitute one
and
the same instrument.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
and
year first above written.
J
&
J
SNACK FOODS
SALES CORP.
By:
”Xxxxxx X.
Xxxxxxxx”
|
|
Name: Xxxxxx
X. Xxxxxxxx
|
|
|
|
Title:
Chairman of the Board
|
INTEGRATED
BRANDS,
INC.
By: ”Xxxxxxx
Xxxxxxx”
Name: Xxxxxxx
Xxxxxxx
Title: President
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