Exhibit
10.10


 


Amendment
No. 1 to Assets Purchase and Sale Contract


 


This Amendment No. 1 to
Assets Purchase and Sale Contract (this “Amendment”) is made as of May 4, 2004
by and among The Wornick Company, a Nevada corporation (“Wornick”), The Wornick
Company Right Away Division, a Nevada corporation (“TWCRAD”), The Wornick
Company Right Away Division, L.P., a Texas limited partnership (“TWCRADLP”),
Right Away Management Corporation, a Texas corporation (“RAMCO” and
collectively with Wornick, TWCRAD and TWCRADLP, the “Sellers” and individually,
a “Seller”), The Wornick Company, a Delaware corporation (“Buyer”), and Veritas
Capital Management II, LLC (“Veritas”). 
Sellers, Buyer and Veritas are sometimes individually referred to herein
as a “Party” and collectively as the “Parties”.


 


WHEREAS, the Parties have
previously entered into that certain Assets Purchase and Sale Contract dated
December 3, 2003 (the “Purchase Contract”); and


 


WHEREAS, the Parties
desire to amend the Purchase Contract upon the terms and conditions set forth
in this Amendment;


 


NOW, THEREFORE, for and
in consideration of the mutual covenants and agreements herein set forth, the
Parties agree as follows:


 


A.                                   Unless
otherwise defined, all capitalized terms in this Amendment shall have the meanings
ascribed to such terms in the Purchase Contract.


 


B.                                     Section 2.3
of the Purchase Contract is hereby deleted in its entirety and the following
Section 2.3 is adopted by this Amendment in its place:


 


2.3.                              CONSIDERATION


 


(a)                                  The
consideration for the Assets (the “Purchase Price”) will be (a) One Hundred
Fifty Five Million Dollars 
($155,000,000) plus or minus the Adjustment Amount and (b) the
assumption of the Assumed Liabilities.


 


(b)                                 In
accordance with Section 2.7(b), at the Closing, the Purchase Price, prior
to adjustment on account of the Adjustment Amount, shall be delivered by Buyer
as follows: (i) One Hundred Fifty Million Dollars ($150,000,000) by wire
transfer to Sellers; and (ii) Five Million Dollars ($5,000,000) by wire
transfer to an Escrow Agent mutually satisfactory to Sellers and Buyer (the
“Escrow Agent”) to hold in accordance with the terms and conditions of an
escrow agreement in form and substance mutually satisfactory to Sellers and
Buyer (the “Escrow Agreement”), providing for, among other things, termination
of the Escrow Agreement on September 30, 2005.


 
















 


(c)                                  Within
ten (10) Business Days after the execution of this Amendment, Veritas shall
cause Buyer to deposit the sum of Five Million Dollars ($5,000,000) (the
“Deposit”) in escrow in accordance with the terms and conditions of the Deposit
Escrow Agreement in the form of Exhibit A attached hereto.  Unless this Contract shall be terminated
pursuant to Section 9.1, on the Closing Date the Deposit (together with
all interest and other distributions or gains, hereinafter referred to as
“Earnings”) shall be released to Sellers as partial payment  of the Purchase Price and the amount payable
by Buyer to Sellers at the Closing pursuant to Section 2.3(b) shall be
reduced by the amount of the Deposit and Earnings.  In the event the Closing does not occur as a
result of the Breach by Buyer of its obligations under this Contract, Sellers
shall be entitled to receive the Deposit and Earnings as liquidated
damages.  Buyer and Sellers hereby acknowledge
that the amount of damages which would be incurred by Sellers as a result of
Buyer’s Breach of this Contract for not Closing are difficult to ascertain and
that the amount of liquidated damages provided for by this Section 2.3(c)
are reasonable.  Notwithstanding anything
to the contrary contained in this Contract (including, without limitation,
Sections 9.2 and 13.5), Buyer shall have no other liability to Sellers in the
event the Closing does not occur.  In the
event the Closing does not occur other than as a result of the Breach by Buyer
of its obligations under this Contract, the Deposit and Earnings shall be
returned to Buyer.


 


C.                                     Section 2.6
of the Purchase Contract is hereby amended to read in its entirety as follows:


 


2.6.                              CLOSING


 


The purchase and sale
provided for in this Contract (the “Closing”) will take place at the offices of
Winston & Strawn LLP, 200 Park Avenue, New York, New York 10166, commencing
at 10:00 a.m. (local time) on a date on or before June 30, 2004, agreed
upon by Buyer and Sellers.  Subject to
the provisions of Article 9, failure to consummate the purchase and sale
provided for in this Contract on the date and time and at the place determined
pursuant to this Section 2.6 will not result in the termination of this
Contract and will not relieve any Party of its obligation under this
Contract.  In such a situation, the
Closing will occur as soon as practicable, subject to Article 9.


 


D.                                    Section 2.7(b)(i)
of the Purchase Contract is hereby amended to read in its entirety as follows:


 


2
















 


(i)                                     One
Hundred Fifty Million Dollars ($150,000,000) (less the amount of the Deposit
and Earnings) by wire transfer to an account specified by Sellers in a writing
delivered to Buyer at least three (3) Business Days prior to the Closing Date,
and Five Million Dollars ($5,000,000) by wire transfer to the account of the
Escrow Agent pursuant to the Escrow Agreement;


 


E.                                      Section 9.1(f)
of the Purchase Contract is hereby amended by deleting the reference to
“March 31, 2004” in such section and substituting the date “
June 30, 2004” in lieu thereof.


 


F.                                      Section 9.1(g)
of the Purchase Contract is hereby amended by deleting the reference to
“March 31, 2004” in such section and substituting the date
“June 30, 2004” in lieu thereof.


 


G.                                     For
the avoidance of doubt, all references in the Purchase Contract to the approval
of the Purchase Contract by the ESOT Trustee (including, without limitation,
those references contained in Sections 7.8 and 8.6) shall mean the approval of
the Purchase Contract, as amended by this Amendment, by the ESOT Trustee.  Additionally, all references in the Purchase
Contract to the ESOT Trustee (including, without limitation, paragraph 4 under
“PREMISES” and Schedule 1) shall mean Susan M. Ledingham, who replaced
First Bankers Trust Company as the ESOT Trustee effective December 23,
2003.


 


H.                                    Except
as herein and hereby amended, modified or changed, all terms and provisions of
the Purchase Contract shall remain in full force and effect.


 


I.                                         This
Amendment may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Amendment and all of which, when taken
together, will be deemed to constitute one and the same agreement.  The exchange of copies of this Amendment and
of signature pages by facsimile transmission shall constitute effective
execution and delivery of this Amendment as to the Parties and may be used in
lieu of the original Amendment for all purposes.  Signatures of the Parties transmitted by
facsimile shall be deemed to be the original signatures for all purposes.


 


J.                                        Attached
hereto are supplements to Schedules 3.6(a), 3.6(b), 3.13(a), 3.15 and 3.16(a)
to update the information and representations previously stated therein.  Additionally, to supplement
Schedule 3.19(a), Don Leifer, Vice President of Sales and Marketing for
Wornick, has become an Active Employee. 
Additionally, to supplement Schedule 3.3, Sellers have delivered to
Buyer the audited financial statements of Sellers as of December 31, 2003,
which include certain restatements related to prior periods and certain changes
in accounting materials, all as set forth therein.


 


K.                                    Buyer
hereby waives the right to assert a claim for damages for Breach of any
representation or warranty as to any matter disclosed in the Schedules attached
to the Purchase Contract or supplemented hereby.  In addition, in the event that prior to the
Closing Sellers notify Buyer in writing of any other supplements to the
Schedules, Buyer waives its right


 


3
















 


to assert a claim against
Sellers for damages in connection with any representation or warranty relating
to such notification; provided, however, that Buyer shall be
entitled to exercise its rights under Section 9.1 of the Purchase Contract
in connection with any such notification.


 


L.                                      For
purposes of satisfying the requirements of Section 2.3(b) of the Purchase
Contract concerning the Escrow Agreement, the parties agree that the Escrow
Agreement shall be in substantially the form of Exhibit B hereto,
subject to any changes required by the Escrow Agent.


 


4
















 


IN WITNESS
WHEREOF, the Parties have executed this Amendment as of the date first above
written.


 


 


	
  Buyer:

  	
   

  	
  Sellers:

  
	
   

  	
   

  	
   

  
	
  The Wornick Company, a
  Delaware corporation

  	
   

  	
  The Wornick Company, a
  Nevada corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
    /s/ Robert
  B. McKeon

  	
   

  	
  By:

  	
     /s/
  Larry L. Rose

  
	
   

  	
  Robert B. McKeon

  	
   

  	
   

  	
  Larry L. Rose

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  	
  President and Chief
  Executive

  Officer

  



 


 


Solely for purposes of Section 2.3(c) and Section 13.16:


 


	
  Veritas Capital
  Management II, L.L.C.

  	
   

  	
  The Wornick Company
  Right

  Away Division, a Nevada

  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Robert B. McKeon

  	
   

  	
  By:

  	
     /s/
  Larry L. Rose

  
	
   

  	
  Robert B. McKeon

  	
   

  	
   

  	
  Larry L. Rose

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  	
  President and Chief
  Executive

  
	
   

  	
   

  	
   

  	
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Wornick Company
  Right Away

  
	
   

  	
   

  	
  Division, L.P., a Texas
  limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Right Away Management
  Corporation,

  
	
   

  	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Keith
  Frase

  
	
   

  	
   

  	
   

  	
  Keith Frase, President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Right Away Management
  Corporation,

  
	
   

  	
   

  	
  a Texas corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Keith
  Frase

  
	
   

  	
   

  	
   

  	
  Keith Frase, President

  



 


5