EXHIBIT 2.1.6
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of October 20, 2003 by and
among XXXXXX XXXXX FOODS, INC., a Delaware corporation ("Xxxxxx Xxxxx"),
CENTENNIAL SPECIALTY FOODS CORPORATION, a Delaware corporation ("Centennial" or
the "Company"), Xxxxx X. Xxxxx, an individual ("JEL") and Xxxxx X. Xxxxx, an
individual ("JML").
WHEREAS, the respective Boards of Directors of Xxxxxx Xxxxx and the
Company have approved, and deem it fair to, advisable and in the best interests
of their respective companies and stockholders to consummate the merger of
Xxxxxx Xxxxx with and into the Company (the "Merger"), upon the terms and
subject to the conditions of this Agreement and Plan of Merger (this
"Agreement"), whereby the ten issued and outstanding shares of common stock of
Xxxxxx Xxxxx (a "Xxxxxx Xxxxx Share" or collectively, the "Xxxxxx Xxxxx
Shares"), will be exchanged in the merger for an aggregate of 2,000,000 shares
of the Series A Preferred Stock, $0.0001 par value per share, ("Merger
Consideration") of the Company;
WHEREAS, Xxxxxx Xxxxx and the Company desire to make certain
representations, warranties and agreements in connection with the Merger and
also to prescribe various conditions to the Merger;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties agree
as follows:
ARTICLE I
CERTAIN DEFINITIONS
Unless the context otherwise requires, the terms defined in this
Article I shall have the meanings herein specified for all purposes of this
Agreement, applicable to both the singular and the plural forms of such terms.
Any capitalized term used in this Agreement and not ascribed a meaning in this
Article I shall have the meaning ascribed to such term elsewhere in this
Agreement.
"Affiliate" means, with respect to a Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such Person, and shall include (a)
any officer or director or of a Person, (b) any Person of which Centennial or
Xxxxxx Xxxxx (or such specified Person) or any Affiliate (as defined in clause
(a) above) of Centennial or Xxxxxx Xxxxx (or such specified Person) shall,
directly or indirectly, beneficially own either (i) at least 10% of the
outstanding equity securities having the general power to vote, or (ii) at least
10% of the interests, or (c) any Person directly or indirectly controlling
Centennial or Xxxxxx Xxxxx (or such specified Person) through a management
agreement, voting agreement or other contract.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or would reasonably form the
basis for any specified consequence.
"Benefit Arrangement" mean any form of current or deferred
compensation, bonus, stock option, stock appreciation right, severance pay,
salary continuation, pension, profit-sharing, retirement or incentive plan,
practice or arrangement, any group or individual disability, medical, dental,
health, hospitalization, life insurance or other insurance plans or related
benefits, or any other welfare or similar plan or arrangement for the benefit of
any director, officer or employee, whether active or retired, or for any class
or classes of such directors, officers or employees.
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"Breach" has the meaning set forth in Section 8.1.2.
"Breaching Party" has the meaning set forth in Section 8.1.2.
"Centennial" has the meaning set forth in the first paragraph hereof.
"Centennial Indemnified Party" has the meaning set forth in Section
9.2.
"Claim" means any actual or threatened claim, action, suit,
arbitration, hearing, inquiry, proceeding (including administrative and informal
proceedings), complaint, charge, investigation or audit by or before any
Governmental Entity or arbitrator and any appeal from any of the foregoing.
"Closing" has the meaning set forth in Section 3.1 below.
"Closing Date" has the meaning set forth in Section 3.1 below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the
businesses and affairs of any of the Parties that is not already generally
available to the public. Confidential Information includes all information or
material disclosed or provided by Xxxxx or Xxxxxx Xxxxx to Centennial (or vice
versa), either orally or in writing, or obtained by Centennial from a third
party or any other source, concerning any aspect of the business or affairs of
Xxxxxx Xxxxx or Xxxxxx or their Affiliates (or vice versa), including without
limitation, any information or material pertaining to products, formulae,
specifications, designs, processes, plans, policies, procedures, employees, work
conditions, legal and regulatory affairs, assets, inventory, discoveries,
trademarks, patents, manufacturing, packaging, distribution, sales, marketing,
expenses, financial statements and data, customer and supplier lists, raw
materials, costs of goods and relationships with third parties. Confidential
Information also includes any notes, analyses, compilations, studies or other
material or documents prepared by the Parties which contain, reflect or are
based, in whole or in part, on the Confidential Information. Notwithstanding the
foregoing, Confidential Information shall not include information or material
that (i) is publicly available or becomes publicly available through no action
or fault of other Party, (ii) was already in a Party's possession or known to a
Party prior to being disclosed or provided to that Party by or on behalf of the
other Party provided, that, the source of such information or material was not
bound by a contractual, legal or fiduciary obligation of confidentiality, known
to Party, to the other Party or any other party with respect thereto, or (iii)
was or is obtained by a Party from a third party, provided, that, such third
party was not bound by a contractual, legal or fiduciary obligation of
confidentiality to the other Party or any other party with respect to such
information or material that is known to the Party which obtained the
information from the third party.
"Disclosure Schedule" means the Schedules to this Agreement required to
be prepared by Xxxxxx Xxxxx and delivered to Centennial.
"Employee Plan" means any "employee benefit plan," as defined in
Section 3(3) of ERISA, which is subject to any provisions of ERISA, and covers
any employee, whether active or retired, of Xxxxxx Xxxxx or Xxxxxx.
"Environmental, Health, and Safety Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, and the Occupational Safety and Health
Act of 1970, each as amended, together with all Legal Requirements concerning
pollution or protection of the environment, public health and safety, or
employee health and
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safety, including Legal Requirements relating to emissions, discharges,
releases, or threatened releases of pollutants, contaminants, or chemical,
industrial, hazardous, or toxic materials or wastes into ambient air, surface
water, ground water, or lands or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, or chemical, industrial, toxic materials
or other Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Financial Statements" shall have the meaning as set forth in Section
4.5.
"GAAP" means United States generally accepted accounting principles, as
amended from time to time.
"Governmental Entity" means any court, federal, state, local or foreign
government or any administrative agency or commission or any other governmental
authority or instrumentality whatsoever.
"Hazardous Substances" means any hazardous, toxic or infectious
substance, material, gas or waste which is regulated by any Governmental Entity.
"Hoopeston" means Hoopeston Foods Denver Corp, which, pursuant to a
Co-Pack and Warehousing Agreement with Xxxxxx Canning Company, a wholly-owned
subsidiary of Xxxxxx Xxxxx, dated January 26, 2001, and various other
agreements, provides for Hoopeston to operate the canning and food production
plant owned by Xxxxxx located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
"Indebtedness" means, when used with reference to any Person, without
duplication, (i) any Liability of such Person created or assumed by such Person,
or any Subsidiary thereof, (A) for borrowed money, (B) evidenced by a bond,
note, debenture, or similar instrument (including a purchase money obligation,
deed of trust or mortgage) given in connection with the acquisition of, or
exchange for, any property or assets (other than inventory or similar property
acquired and consumed in the Ordinary Course of Business), including securities
and other indebtedness, (C) in respect of letters of credit issued for such
Person's account and "swaps" of interest and currency, exchange rates (and other
interest and currency exchange rate hedging agreements) to which such Person is
a party or (D) for the payment of money as lessee under leases that should be,
in accordance with GAAP recorded as capital leases for financial reporting
purposes; (ii) any Liability of others described in the preceding clause (i)
guaranteed as to payment of principal or interest by such Person or in effect
guaranteed by such Person through an agreement, contingent or otherwise, to
purchase, repurchase, or pay the related Indebtedness or to acquire the security
therefore; (iii) all Liabilities or obligations secured by a Lien upon property
owned by such Person and upon which Liabilities or obligations such Person
customarily pays interest or principal, whether or not such Person has assumed
or become liable for the payment of such liabilities or obligations; and (iv)
any amendment, renewal, extension, revision or refunding of any such Liability
or obligation.
"Indemnified Party" has the meaning set forth in Section 9.4.
"Indemnifying Party" has the meaning set forth in Section 9.4.
"Intellectual Property" means (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-
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goodwill associated therewith, and all applications registrations, and renewals
in connection therewith; (iii) all copyrightable works, together with all
copyrights and all applications, registrations, and renewals in connection
therewith; (iv) all trade secrets and confidential business information
(including recipes, ideas, research and development, know-how, formulas,
formulations, 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); (v) all computer software (including data and related
documentation); (vi) all other proprietary rights; and (vii) all copies and
tangible embodiments thereof (in whatever form or medium).
"IPO" means, with respect to Centennial, (i) the completed initial
offering and sale of a minimum of 1,550,000 shares of Centennial's common stock
to the public at a minimum price of $5.00 per share in an offering registered
under the provisions of the Securities Act and described in Centennial's
registration statement on Form SB-2 filed with the SEC, and (ii) Centennial
common stock being quoted on the NASDAQ SmallCap Market.
"JEL" means Xxxxx X. Xxxxx.
"JML" means Xxxxx X. Xxxxx.
"Knowledge" means that a Party is actually aware of the fact or matter
in question.
"Legal Requirement" means any statute, law, ordinance, rule,
regulation, permit, order, writ, judgment, injunction, decree or award issued,
enacted or promulgated by any Governmental Entity or any arbitrator with binding
authority on a Party or Parties, as the case may be.
"Xxxxx" means JEL and JML collectively.
"Xxxxx Indemnified Party" has the meaning set forth in Section 9.3.
"Liability" means any liability (whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether liquidated
or unliquidated, and whether due or to become due), including, but not limited
to, any liability for Taxes.
"Licenses" has the meaning set forth in Section 4.14 below.
"Lien" means all liens (including judgment and mechanics' liens,
regardless of whether liquidated), mortgages, assessments, security interests,
easements, pledges, trusts (constructive or otherwise), deeds of trust, options
or other charges, encumbrances or restrictions.
"Losses" means any and all losses, damages, demands, assessments,
adjustments, judgments, settlement payments, deficiencies, penalties, fines,
interest (including interests from the date of such damages), and costs and
expenses (including without limitation reasonable attorneys' fees and
disbursements of every kind, nature and description).
"Material Adverse Effect" means any event, effect, development,
occurrence or circumstance, individually or when taken together with all other
such events, effects, developments, occurrences or circumstances, causing,
resulting in or having a material adverse effect on (i) the business, assets,
results of operations, properties or condition (financial or otherwise) of
Xxxxxx Xxxxx, Xxxxxx or Centennial, as applicable; or (ii) the legal right or
authorization of Xxxxxx Xxxxx, Xxxxxx or Centennial, as applicable, to continue
to operate its business as a going concern.
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"Material Contracts" means with respect to Xxxxxx Xxxxx and Xxxxxx (i)
any union contract or any employment or consulting contract or arrangement
providing for future compensation, written or oral, with any officer, director
or employee which is not terminable on thirty (30) days notice or less without
penalty or obligation to make payments related to such termination; (ii) any
plan contract or arrangement, whether written or oral, providing for bonuses,
pensions, deferred compensation, severance pay or benefits, retirement payments,
profit sharing or the like; (iii) any existing broker agreement, lease sale or
purchase agreement, distribution agreement, volume purchase agreement, or
similar agreement in which the annual amount involved in fiscal 2002 exceeded or
is expected to exceed $20,000 in aggregate amount; (iv) except for trade
indebtedness incurred in the Ordinary Course of Business, any Indebtedness
incurred in the acquisition of companies or other entities or Indebtedness for
borrowed money by way of direct loan, sale of debt securities, recourse
obligations on lease sales, purchase money obligation, conditional sale,
guarantee, leasehold obligations or otherwise; (v) any contract containing
covenants purporting to limit in any way the freedom of Xxxxxx Xxxxx or Xxxxxx
to compete in any line of business or in any geographic area; (vi) any agreement
of indemnification; (vii) any agreement, contract or commitment relating to
capital expenditures and which involve future payments in excess of $25,000 in
the aggregate by Xxxxxx Xxxxx or Xxxxxx; (viii) any agreements, contracts or
commitments relating to the disposition of assets, including any intangible
assets or Intellectual Property rights (other than inventory), which involve
payments in excess of $25,000 in the aggregate by Xxxxxx Xxxxx or Xxxxxx; (ix)
any contracts with a Governmental Entity subject to price redetermination or
renegotiation; or (x) all insurance policies of Xxxxxx Xxxxx and Xxxxxx; (xi)
all equipment leases of Xxxxxx Xxxxx and Xxxxxx in which Xxxxxx Xxxxx or Xxxxxx
is lessee and which involve payments in excess of $20,000 in the aggregate; or
(xii) any other agreement, contract or commitment which is material to Xxxxxx
Xxxxx or Xxxxxx. "Material Contracts" with respect to Centennial means any
agreement, contract or commitment which Centennial files or is required to file
with its SEC reports.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency and, where appropriate, in accordance with formulas).
"Party" has the meaning set forth in the preamble to this Agreement.
"Permitted Liens" means (i) liens for Taxes not yet due and payable or
for Taxes that the taxpayer is contesting in good faith through appropriate
proceedings; (ii) purchase money Liens and Liens securing rental payments under
capital lease arrangements; (iii) statutory Liens, such as mechanic's,
materialman's, warehouseman's, carrier's or other like Liens, incurred in good
faith in the Ordinary Course of Business, provided that the underlying
obligations relating to such Liens are paid in the Ordinary Course of Business,
or are being contested diligently and in good faith by appropriate proceedings
and as to which the applicable obligor has set aside reserves on its books
reasonably satisfactory to Centennial, or the payment of which obligations are
otherwise secured in a manner reasonably satisfactory to Centennial; and (iv)
zoning ordinances, easements, licenses, reservations, provisions, covenants,
conditions, waivers or restrictions on the use of Property and other title
exceptions, in each case, that are reasonably acceptable to Centennial.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, business enterprise, or a governmental
entity (or any department, agency, or political subdivision thereof), or any
other legal entity, whether acting in an individual, fiduciary or other
capacity.
"Preferred Stock" means the Series A Preferred Stock of Centennial as
such series is designated in the Amended and Restated Certificate of
Incorporation of Centennial.
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"Real Property" has the meaning as set forth in Section 4.8.
"Requisite Regulatory Approvals" has the meaning as set forth in
Section 3.6.9.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Preferred Stock" means the Merger Consideration and, when
stated in the aggregate, means 2,000,000 shares of Series A Preferred Stock of
Centennial.
"Xxxxxx" means Xxxxxx Canning Company, a wholly owned Subsidiary of
Xxxxxx Xxxxx.
"Xxxxxx Xxxxx" has the meaning set forth in the first paragraph hereof.
"Xxxxxx Xxxxx Shares" has the meaning set forth in the Recitals.
"Xxxxxx Xxxxx Stock" means shares of Common Stock, $.01 par value, of
Xxxxxx Xxxxx.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs, duties, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or other
tax or contribution of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Threshold Amount" has the meaning set forth in Section 9.9.2.
ARTICLE II
THE MERGER; EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
SECTION 2.1 The Merger; Requisite Approvals. Upon the terms and subject
to the conditions hereof and in accordance with the Delaware General Corporation
Law (the "DGCL"), Xxxxxx Xxxxx will be merged with and into the Company at the
Effective Time (as defined). Following the Merger, the separate corporate
existence of Xxxxxx Xxxxx will cease and the Company will continue as the
surviving corporation (the "Surviving Corporation") and will continue its
corporate existence in accordance with the DGCL. The Board of Directors and the
stockholders of both the Company and Xxxxxx Xxxxx have approved the Merger upon
the terms and subject to the conditions set forth in this Agreement.
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SECTION 2.2 Effective Time. The Closing (hereinafter defined) of the
Merger will take place upon the satisfaction or, to the extent permitted
hereunder, waiver of the conditions set forth in Article VI and on the date of
the closing (the "Offering Closing") of the Company's initial public offering as
described in its Registration Statement on Form SB-2, S.E.C. File No.
333-107892)(the "Offering") or such other time and date prior to the Offering
Closing Date as is agreed to by Xxxxxx Xxxxx and the Company. As soon as
practicable following the Closing, the Surviving Corporation will file the
Articles of Merger required by the DGCL with respect to the Merger and other
appropriate documents (the "Articles of Merger") executed in accordance with the
relevant provisions of the DGCL. The Merger will become effective at such time
as the Articles of Merger is duly filed with the Delaware Secretary of State
(the time the Merger becomes effective being the "Effective Time").
SECTION 2.3 Effects of the Merger. The Merger will have the effects set
forth in the DGCL. If at any time after the Effective Time, the Surviving
Corporation considers or is advised that any further assignments or assurances
in law or otherwise are necessary or desirable to vest, perfect or confirm, of
record or otherwise, in the Surviving Corporation, all rights, title and
interests in all real estate and other property and all privileges, powers and
franchises of Xxxxxx Xxxxx and the Company, the Surviving Corporation and its
proper officers and directors, in the name and on behalf of Xxxxxx Xxxxx and the
Company, will execute and deliver all such proper deeds, assignments and
assurances in law and do all things necessary and proper to vest, perfect or
confirm title to such property or rights in the Surviving Corporation and
otherwise to carry out the purpose of this Agreement, and the proper officers
and directors of the Surviving Corporation are fully authorized in the name of
the Company or otherwise to take any and all such action.
SECTION 2.4 Certificate of Incorporation and By-laws.
(a) The Amended and Restated Certificate of Incorporation of the
Company, as in effect immediately prior to the Effective Time, will be, from and
after the Effective Time, the Certificate of Incorporation of the Surviving
Corporation, until thereafter altered, amended or repealed as provided therein
and in accordance with applicable law.
(b) The by-laws of the Company, as in effect immediately prior to
the Effective Time, will become, from and after the Effective Time, the by-laws
of the Surviving Corporation, until thereafter altered, amended or repealed as
provided therein and in accordance with applicable law.
SECTION 2.5 Directors and Officers. The directors and officers of the
Company immediately prior to the Effective Time will become, from and after the
Effective Time, the directors and officers of the Surviving Corporation, until
their respective successors are duly elected or appointed and qualified or their
earlier resignation or removal, in accordance with the Surviving Corporation's
certificate of incorporation or by-laws.
SECTION 2.6 Vacancies. If at the Effective Time a vacancy exists in the
Board of Directors or in any of the offices of the Surviving Corporation, such
vacancy may thereafter be filled in the manner provided by the DGCL and the
Certificate of Incorporation and By-laws of the Surviving Corporation.
SECTION 2.7 Stock Options, Warrants or other Derivative Securities.
Xxxxxx Xxxxx has no stock options, warrants or other derivative securities
outstanding. At the Effective Time, the Company's 2003 Non-Employee Directors'
Stock Option Plan (the "Stock Option Plan"), and each outstanding option to
purchase Common Stock of the Company under the Stock Option Plan, whether vested
or unvested, will continue in effect and shall be, until thereafter altered,
amended or terminated as provided therein and in accordance with applicable law,
the Stock Option Plan of the Surviving Corporation. Each option issued or to be
issued by the Surviving Corporation under the Stock Option Plan shall continue
to have,
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and be subject to, the same terms and conditions set forth in the Stock Option
Plan and the applicable stock option agreement immediately prior to the
Effective Time.
SECTION 2.8 Preferred Stock Rights. The Company's Series A Preferred
Stock to be issued as the Merger Consideration shall have the designations,
powers, preferences, and rights, and the qualifications, limitations, and
restrictions (collectively, the "rights and preferences") as are described in
the Company's Amended and Restated Certificate of Incorporation on file with the
Delaware Secretary of State. The Surviving Corporation shall take no action to
alter, amend or terminate the rights and preferences of the Series A Preferred
Stock either prior to or after the Effective Time except as permitted by the
Amended and Restated Certificate of Incorporation and applicable law.
SECTION 2.9 Effect on Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
Xxxxxx Xxxxx Shares, the ten Xxxxxx Xxxxx Shares issued and outstanding
immediately prior to the Effective Time will, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into the
right to receive the Merger Consideration of an aggregate of 2,000,000 shares of
Series A Preferred Stock of the Surviving Corporation. The aggregate liquidation
preference of the Series A Preferred Stock to be issued in the Merger will be
$10.0 million. The holders of Xxxxxx Xxxxx Shares have waived any and all
dissenters rights available to them under the DGCL and hereby confirm to the
Company that none of such rights are, or will be, exercised by them. All of the
Xxxxxx Xxxxx Shares, when so converted, will no longer be outstanding and will
automatically, by virtue of the Merger, be canceled and retired, and each holder
of a certificate formerly representing such Xxxxxx Xxxxx Shares will cease to
have any rights with respect thereto, except the right to receive the Merger
Consideration.
SECTION 2.10 Surrender of Certificates.
(a) Prior to the Effective Time, the Company has engaged Corporate
Stock Transfer, Inc., to act as exchange agent (the "Transfer Agent") for the
payment of the Merger Consideration upon surrender of certificates (the
"Certificates" or a "Certificate") representing the Xxxxxx Xxxxx Shares. Upon
surrender of a Certificate for cancellation to the Transfer Agent and such other
documents as may reasonably be required by the Transfer Agent, the holder of
such Certificate will be entitled to receive in exchange therefore the Merger
Consideration, and the surrendered Certificate will forthwith be canceled. If
any part of the Merger Consideration is to be paid to a Person other than the
Person in whose name the Certificate is registered, it will be a condition of
exchange that the Certificate will be properly endorsed or otherwise in proper
form for transfer and that the Person requesting the exchange will pay any
transfer or other taxes required by reason of the exchange to a Person other
than the registered holder of such Certificate or establish to the reasonable
satisfaction of the Surviving Corporation that such tax has been paid or is not
applicable. Until surrendered as contemplated by this Section 2.2, each
Certificate will be deemed at any time after the Effective Time to represent
only the right to receive, upon surrender of such Certificate, the Series A
Preferred Stock issuable therefore.
(b) The Merger Consideration to be paid upon the surrender of
Certificates in accordance with the terms of this Article II will be deemed to
have been exchanged and paid in full satisfaction of all rights pertaining to
the Xxxxxx Xxxxx Shares theretofore represented by such Certificates and there
will be no further registration of transfers on the stock transfer books of the
Surviving Corporation of the Xxxxxx Xxxxx Shares that were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason, such
Certificate will be canceled and exchanged as provided in this Article II.
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(c) At any time following six (6) months after the Effective Time,
the Surviving Corporation receives a Certificate for transfer, the holder or
holders thereof shall be entitled to look only to the Surviving Corporation
(subject to abandoned property, escheat or other similar laws) with respect to
the Merger Consideration payable upon due surrender of their Certificates,
without any interest thereon. Notwithstanding the foregoing, neither Xxxxxx
Xxxxx, the Surviving Corporation nor the Exchange Agent shall be liable to any
holder of a Certificate for Merger Consideration delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
SECTION 2.11 Characterization for Federal Income Tax Purposes. For
federal income tax purposes, it is intended that the Merger contemplated by this
Agreement be treated as a forward A merger within the meaning of Section
368(a)(1)(A) of the Code.
SECTION 2.12 Termination and Superceding of Prior Agreements. Centennial,
Xxxxxx Xxxxx and the Lewises agree that certain Stock Purchase Agreement among
them dated effective June 20, 2003 (the "Stock Purchase Agreement") is
terminated and of no further force or effect, it being the intent of the Parties
that such Stock Purchase Agreement be superceded in its entirety by this
Agreement. The Parties further acknowledge and agree that the termination of the
Stock Purchase Agreement has not given rise to any Losses, past, present or
future, on the part of any Party, and that the Parties shall mutually indemnify
one another for any such Losses related to the termination of the Stock Purchase
Agreement to the fullest extent permitted, and in accordance with, Article IX
hereof. The parties also acknowledge the termination of that certain voting
trust agreement among Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxx and Centennial dated on
or about September 17, 2003.
ARTICLE III
CLOSING
3.1 Closing. The consummation of the Merger and the other transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Centennial, located at 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000, on such date that all of the conditions to Closing are satisfied
including, without limitation, the satisfaction of the condition set forth in
Section 3.7.6 that Centennial shall have consummated the IPO (the "Closing
Date"), or such other date and place as the Parties may mutually agree. The
Closing shall be carried out and completed in accordance with the escrow
provisions set forth in Section 3.8 below.
3.2 Mutual Deliveries at Closing. Provided that all of the conditions
to the Closing set forth in Sections 3.6 and 3.7 below have been satisfied or
waived by the Party benefitting therefrom, the appropriate Parties or Persons
shall execute and deliver or cause to be delivered the certificates and
documents hereinafter described.
3.3 Deliveries of Xxxxx at Closing. Provided that all of the conditions
to the Closing set forth in Sections 3.6 and 3.7 below have been satisfied or
waived by the Party benefitting therefrom, Xxxxx shall execute and deliver or
cause to be delivered to Centennial at the Closing the following documents:
3.3.1 The original stock certificates for all of the Xxxxxx Xxxxx
Shares along with a duly executed stock power in favor of Centennial for such
certificates; and
3.3.2 Such other documents and instruments as may be specified in
this Agreement or otherwise reasonably requested by Centennial in order to
consummate the transactions contemplated hereby.
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3.4 Xxxxxx Xxxxx' Deliveries at Closing. Provided that all of the
conditions to the closing set forth in Sections 3.6 and 3.7 below have been
satisfied or waived from the Party benefitting therefrom, Xxxxxx Xxxxx shall
execute and deliver or cause to be delivered to Centennial at the Closing the
following:
3.4.1 An Officer's Certificate of Xxxxxx Xxxxx dated the Closing
Date substantially in the form of Exhibit 3.4 hereto;
3.4.2 Xxxxxx Xxxxx' and Xxxxxx original minute books, such minute
books to contain (i) original Certificates or Articles of Incorporation, as the
case may be, and all amendments thereto, or copies thereof if the originals are
unavailable; (ii) bylaws presently in effect; (iii) stock transfer records
together with all available canceled stock certificates; and (iv) all minutes of
meetings or consents in lieu of such meetings of board of directors and
shareholders;
3.4.3 A good standing certificate of Xxxxxx Xxxxx and Xxxxxx, dated
within forty five (45) business days of the Closing Date, for each jurisdiction
in which Xxxxxx Xxxxx or Xxxxxx is required to be qualified and authorized to do
business;
3.4.4 Minutes of the board of directors and shareholders of Xxxxxx
Xxxxx authorizing and approving this Agreement and the transactions contemplated
herein;
3.4.5 The resignations of all of the officers and directors of
Xxxxxx Xxxxx and Xxxxxx effective as of the Closing Date;
3.4.6 The Disclosure Schedule required to be submitted to
Centennial by Xxxxxx Xxxxx and JEL; and
3.4.7 Such other documents and instruments as may be specified in
this Agreement or otherwise reasonably requested in writing by Centennial in
order to consummate the transactions contemplated hereby.
3.5 Centennial's Deliveries at Closing. Provided that all of the
conditions to the Closing set forth in Sections 3.6 and 3.7, below, have been
satisfied or waived by the Party benefitting therefrom, Centennial shall execute
and deliver or cause to be delivered to Xxxxx at the Closing the following:
3.5.1 The Certificates representing the Preferred Stock;
3.5.2 A good standing certificate of Centennial, dated within forty
five (45) business days of the Closing Date, for each jurisdiction in which
Centennial is required to be qualified and authorized to do business;
3.5.3 Minutes of the board of directors and shareholders of
Centennial authorizing and approving this Agreement and the transactions
contemplated herein;
3.5.4 The Indemnification Agreement in the form attached hereto as
Exhibit 3.5.4; and
3.5.5 Such other documents and instruments as may be specified in
this Agreement or otherwise reasonably requested in writing by Xxxxx in order to
consummate the transactions contemplated hereby.
3.6 Conditions of Centennial. Centennial's obligations hereunder to
consummate the transactions hereunder are subject to the satisfaction, at or
prior to the Closing, of all of the following conditions:
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3.6.1 Representations and Warranties True; Performance of
Obligations. The representations and warranties made by Xxxxxx Xxxxx and JEL in
this Agreement shall be true, correct and complete in all material respects on
and as of the Closing Date with the same force and effect as if they had been
made on and as of said date; and Xxxxxx Xxxxx and Xxxxx shall have in all
material respects performed all of the obligations and complied with each and
all of the covenants required to be performed or complied with by them on or
prior to the Closing Date.
3.6.2 Material Adverse Effect. No act, event or condition shall
have occurred which Centennial determines in its reasonable discretion has had
or could have a Material Adverse Effect on Xxxxxx Xxxxx or Xxxxxx.
3.6.3 Authorizations and Approvals. All authorizations, approvals
or consents, if any, from third parties, including from any Governmental Entity
or other Person, required to be obtained by Xxxxx and Xxxxxx Xxxxx shall have
been obtained.
3.6.4 Investigation of Xxxxxx Xxxxx. Centennial shall have
concluded (through its representatives, accountants, counsel and other experts)
a due diligence investigation of the business, condition (financial, legal and
other), properties, assets, prospects, operations and affairs of Xxxxxx Xxxxx
and Xxxxxx.
3.6.5 Deliveries. Centennial shall have received from the
appropriate Party or Person, the delivery obligations set forth in Sections 3.2
through 3.4 above.
3.6.6 Disclosure Schedule. Centennial shall be satisfied with the
Disclosure Schedule delivered by Xxxxxx Xxxxx and JEL in accordance with Section
3.4.6 above.
3.6.7 No Claims. There shall not be instituted and pending or
threatened any Claims before any Governmental Entity (i) challenging or
otherwise seeking to restrain or prohibit the consummation of the transactions
contemplated hereby, or (ii) seeking to prohibit the direct or indirect
ownership or operation by Centennial of all or a material portion of the
business or assets of Xxxxxx Xxxxx, or to compel Centennial or Xxxxxx Xxxxx to
dispose of or hold separate all or a material portion of the business or assets
of Xxxxxx Xxxxx or Centennial.
3.6.8 Corporate Action. All corporate and other proceedings and
actions taken in connection with the transactions contemplated hereby and all
certificates, opinions, agreements, instruments, releases and documents
referenced herein or incident to the transactions contemplated hereby shall be
in form and substance satisfactory to Centennial and its counsel.
3.6.9 Requisite Regulatory Approvals. All notices or filings
required to be made, all authorizations, permits, certificates, registrations,
consents, approvals or orders required to be obtained, and all waiting periods
required to expire, prior to the consummation of the transactions contemplated
by this Agreement under applicable federal law of the United States or
applicable laws of any state having jurisdiction over the transactions
contemplated by this Agreement or the businesses conducted by the Parties or any
Affiliate or Subsidiary of any Party (collectively, the "Requisite Regulatory
Approvals") shall have been obtained or expired, as the case may be, without the
imposition of any condition which is materially burdensome upon Centennial or
any Party or Person to be affected by such condition.
3.6.10 IPO Completed. The IPO of Centennial shall have been closed.
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3.7 Conditions of Xxxxxx Xxxxx and Xxxxx. Xxxxxx Xxxxx' and Xxxxx'
obligations hereunder to consummate the transactions hereunder are subject to
the satisfaction, at or prior to the Closing, of the following conditions:
3.7.1 Representations and Warranties True; Performance of
Obligations. The representations and warranties made by Centennial in this
Agreement shall be true, correct and complete in all material respects on and as
of the Closing Date with the same force and effect as if they had been made on
and as of said date; and Centennial shall have in all material respects
performed all of the obligations and complied with each and all of the covenants
required to be performed or complied by it on or prior to the Closing Date.
3.7.2 Authorizations and Approvals. All authorizations, approvals
or consents, if any, from third parties, including from any Governmental Entity
or other Person, required to be obtained by Centennial shall have been obtained.
3.7.3 Deliveries. Xxxxxx Xxxxx or Xxxxx, as applicable, shall have
received from Centennial the delivery obligations set forth in Sections 3.2 and
3.5 above.
3.7.4 No Claims. There shall not be instituted and pending or
threatened any Claims before any Governmental Entity (i) challenging or
otherwise seeking to restrain or prohibit the consummation of the transactions
contemplated hereby, or (ii) seeking to prohibit the direct or indirect
ownership or operation by Centennial of all or a material portion of the
business or assets of Xxxxxx Xxxxx, or to compel Centennial or Xxxxxx Xxxxx to
dispose of or hold separate all or a material portion of the business or assets
of Xxxxxx Xxxxx or Centennial.
3.7.5 Requisite Regulatory Approvals. The Requisite Regulatory
Approvals shall have been obtained or expired, as the case may be, without the
imposition of any condition which is materially burdensome upon Xxxxxx Xxxxx or
any Party or Person to be affected by such condition.
3.7.6 IPO Completed. The IPO of Centennial shall have been closed.
3.8 Escrow. On or prior to the date that the registration statement
filed with the SEC for the IPO becomes effective, the Parties hereto shall
execute all of the documents to be delivered at Closing as set forth in Sections
3.2 through 3.5 above and deliver such originally executed documents to an
escrow agent appointed in the manner set forth below. The documents will be held
by the escrow agent in escrow, subject to instructions to deliver the documents
as follows:
Upon closing of the IPO, to the recipients entitled to receive such
documents at the Closing as provided under Sections 3.2 through 3.5
above; or
If this Agreement is terminated prior to closing the IPO pursuant to
Section 8.1 hereof, to the Parties who executed and delivered such
documents to the escrow agent.
The escrow agent shall be selected and appointed by mutual agreement of JEL and
Centennial. The above instructions and the other terms and conditions of the
escrow arrangement shall be set forth in a written escrow agreement mutually
acceptable to JEL, Centennial and the escrow agent. The fees of the escrow agent
and other costs and expenses of such escrow shall be paid by Centennial under
Section 7.5 hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF XXXXXX XXXXX AND JEL
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Xxxxxx Xxxxx and JEL, jointly and severally, represent and warrant to
Centennial that (except for changes contemplated by this Agreement and except as
set forth in the Disclosure Schedule attached hereto), each of the following
statements is true, correct and complete as of the date of this Agreement and
the Closing Date:
4.1 Organization and Standing, Certificate or Articles of Incorporation
and Bylaws. Xxxxxx Xxxxx and Xxxxxx are corporations duly organized, validly
existing and in good standing under the laws of the State of Delaware and
Colorado, respectively, have full power and authority to own their assets and
properties and to carry on their business as presently conducted. Xxxxxx Xxxxx
and Xxxxxx are duly qualified and authorized to do business, and are in good
standing as a foreign corporation, in each jurisdiction where the nature of
their activities or of their properties (both owned and leased) make such
qualification necessary, except where the failure to so qualify would not have a
Material Adverse Effect. Xxxxxx Xxxxx has furnished Centennial with copies of
the Certificate or Articles of Incorporation, as the case may be, and Bylaws, as
amended to the date hereof, of both Xxxxxx Xxxxx and Xxxxxx. Said copies are
true, correct and complete and contain all amendments through the Closing Date.
4.2 Authorization. All actions on the part of Xxxxx and all corporate
action on the part of Xxxxxx Xxxxx, its officers, directors and shareholders
necessary for the authorization, execution and delivery of this Agreement and
the documents contemplated hereby, the performance of all of Xxxxxx Xxxxx' and
Xxxxx' obligations hereunder and thereunder have been taken prior to the
Closing. This Agreement and the documents contemplated hereby, when executed and
delivered, shall constitute valid and legally binding obligations of Xxxxxx
Xxxxx and Xxxxx enforceable in accordance with their respective terms.
4.3 Subsidiaries. Other than Xxxxxx and Produce Finance, LLC, a
Colorado limited liability company, both of which are wholly-owned by Xxxxxx
Xxxxx, Xxxxxx Xxxxx has no Subsidiaries and does not presently own, of record or
beneficially, or control, directly or indirectly, any capital stock, securities
convertible into capital stock or any other equity interest in any corporation,
association or business entity, nor is Xxxxxx Xxxxx, directly or indirectly, a
participant in any joint venture, partnership or other entity. Produce Finance,
LLC is an inactive and now dissolved Subsidiary.
4.4 Capitalization. The authorized capital stock of Xxxxxx Xxxxx
consists of 3,000 shares of voting Common Stock, $.01 par value, and 10 shares
are issued and outstanding as of the date of this Agreement. Xxxxx is the record
and beneficial holder of all of the issued and outstanding shares of Xxxxxx
Xxxxx Common Stock, with JEL owing 5 shares and JML owning 5 shares. All of the
Xxxxxx Xxxxx Shares have been duly authorized and validly issued and are fully
paid and non-assessable.
Other than the foregoing, there are no outstanding shares of Xxxxxx
Xxxxx Stock, preferred stock or any other equity securities of Xxxxxx Xxxxx, and
there are no options, warrants, calls, conversion rights, preemptive rights,
commitments or agreements of any character to which Xxxxxx Xxxxx or Xxxxx may be
bound that do or may obligate Xxxxxx Xxxxx or Xxxxx to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of Xxxxxx Xxxxx
Stock, preferred stock or other equity securities or that do or may obligate
Xxxxxx Xxxxx or Xxxxx to xxxxx, extend or enter into any such option, warrant,
call, conversion right, commitment or agreement. There are no outstanding
arrangements, agreements, commitments or understandings of any kind affecting or
relating to the voting, issuance, purchase, redemption, repurchase or transfer
of any capital stock of Xxxxxx Xxxxx or any other securities of Xxxxxx Xxxxx.
Xxxxxx Xxxxx and Xxxxx have not, or prior to the Closing will have not, become a
party to or subject to any contract or obligation wherein any Person has a right
or option to purchase or acquire any rights in any capital stock or securities
of Xxxxxx Xxxxx. Xxxxx owns of record and beneficially, and has title to all of
the Xxxxxx Xxxxx Shares, free and clear of all Claims and Liens.
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4.5 Financial Statements. True, complete and correct copies of Xxxxxx
Xxxxx' financial statements [containing (1) audited balance sheets as of
December 31, 2002, and 2001, and statements of income, cash flows and
stockholders' equity for the years ended December 31, 2001, and 2002, and (2)
unaudited balance sheets as of June 30, 2003, and 2002, and statements of income
and cash flows for the period then ended, as well as a statement of
stockholders' equity for the six months ended June 30, 2003 (collectively, the
"Financial Statements")], have been delivered to Centennial. The Financial
Statements have been prepared in accordance with GAAP consistently applied and
fairly present the financial position of Xxxxxx Xxxxx as of the dates thereof
and the results of its operations and cash flows for the periods then ended.
There are no Xxxxxx Xxxxx Liabilities, direct or indirect, fixed or contingent,
which are not reflected in the balance sheet as of June 30, 2003, except for
Liabilities incurred in the Ordinary Course of Business subsequent to June 30,
2003, which, either individually or in the aggregate, would not be material. To
the Knowledge of JEL, there is no Basis for any assertion against Xxxxxx Xxxxx
of any material Liability or material obligation of any nature whatsoever that
is not fully reflected in the Financial Statements which, either individually or
in the aggregate, would be material. Since the date of the Financial Statements,
there have been no material changes in Xxxxxx Xxxxx' accounting policies.
4.6 Material Contracts. Schedule 4.6 to the Disclosure Schedule hereto
contains a complete and accurate list of all Material Contracts to which Xxxxxx
Xxxxx or Xxxxxx is a party or bound. True, correct and complete copies of all
Material Contracts listed on Schedule 4.6 to the Disclosure Schedule have been
furnished by Xxxxxx Xxxxx to Centennial. Each Material Contract so listed is a
valid and binding obligation of Xxxxxx Xxxxx or Xxxxxx and is enforceable
against Xxxxxx Xxxxx or Xxxxxx and the other Person or Persons thereto, in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and subject to the availability
of equitable remedies. To the Knowledge of JEL and subject to obtaining any
necessary waivers at or prior to Closing, Xxxxxx Xxxxx and Xxxxxx have performed
all material obligations required to be performed by them to date and are not in
material default under or in breach of any material term or provision of any
Material Contract to which Xxxxxx Xxxxx or Xxxxxx is a party, is subject or is
otherwise bound, and no event has occurred that, with the giving of notice or
the passage of time or both, would constitute such a default or breach under any
Material Contract. To the Knowledge of JEL, no party with whom Xxxxxx Xxxxx or
Xxxxxx has a Material Contract is in default of its obligations thereunder.
Except as otherwise set forth on Schedule 4.6, no consent or approval of any
party to any of the Material Contracts is necessary in order to permit Xxxxxx
Xxxxx to consummate the transactions contemplated hereby.
4.7 Assets Other Than Real Property. Xxxxxx Xxxxx and Xxxxxx have title
to all properties and assets (other than real property which is subject to
Section 4.8, below) owned or leased by Xxxxxx Xxxxx or Xxxxxx, free and clear of
all Liens except for: (i) Liens for current Taxes not yet due and payable which
have been fully reserved for; (ii) Liens, if any, that are not substantial in
character, amount or extent and do not detract materially from the value, or
interfere with present use or the sale or other disposition, of the property
subject thereto or affected thereby, and (iii) Liens set forth on Schedule 4.7.
The assets and properties of Xxxxxx Xxxxx and Xxxxxx constitute all the assets,
properties, rights, privileges and interests necessary for the operation of
Xxxxxx Xxxxx' and Xxxxxx' businesses; provided, however, that no representation
or warranty is made as to the physical condition or current state of repair of
such properties or assets.
4.8 Real Property. Schedule 4.8 to the Disclosure Schedule hereto
contains an accurate list and general description of all real property fee
interests owned by Xxxxxx Xxxxx or Xxxxxx (the "Real Property"). Schedule 4.8 to
the Disclosure Schedule further contains a complete and accurate list of Xxxxxx
Xxxxx' or Xxxxxx' other real property interests pursuant to leases, subleases,
licenses or other agreements. Xxxxxx Xxxxx or Xxxxxx has good and marketable
title in and to the Real Property, free and clear of all Liens and Claims,
except for (i) Liens and Claims and other matters recorded in the real property
records, and (ii) other matters as described in the Disclosure Schedule. To the
extent it has had
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operations thereon, the activities of Xxxxxx Xxxxx or Xxxxxx with respect to the
Real Property are in all material respects permitted and authorized by
applicable zoning laws, ordinances and regulations and all laws and regulations
of any Governmental Entity. The buildings and other improvements on the Real
Property are in the aggregate sufficient to conduct such current business
activities as are conducted at such facilities; provided, however, that no
representation or warranty is made as to the physical condition or current state
of repair of such Real Property, including the improvements thereon.
4.9 No Conflicts. Neither the execution and delivery nor the
performance of this Agreement by Xxxxxx Xxxxx and Xxxxx will result in any of
the following: (i) a default or an event that, with notice or lapse of time or
both, could be a default, breach or violation of (A) the Certificate or Articles
of Incorporation or Bylaws of Xxxxxx Xxxxx or Xxxxxx, (B) any Material Contract;
(ii) the termination of any Material Contract or the acceleration of the
maturity of any Indebtedness or other material obligation of Xxxxxx Xxxxx,
Xxxxxx or Xxxxx; (iii) the creation or imposition of any Lien (except for
Permitted Liens) on any of the assets or properties of Xxxxxx Xxxxx, Xxxxxx or
Xxxxx; (iv) the creation or imposition of any Lien on any shares of the Xxxxxx
Xxxxx Stock; or (v) a violation or breach of any known writ, injunction or
decree of any Governmental Entity or arbitrator to which Xxxxxx Xxxxx or Xxxxxx
is a party or by which any of its properties are bound.
4.10 Litigation. There are no Claims before any court or administrative
agency pending or, to the Knowledge of JEL, currently threatened against or with
respect to Xxxxxx Xxxxx or Xxxxxx, which question the validity of this Agreement
or any action taken or to be taken in connection herewith, or which,
individually or in the aggregate, might result in a Material Adverse Effect, or
in any material impairment of the right or ability to carry on their businesses
as now conducted or as proposed to be conducted, or in any material Liability or
Loss on the part of Xxxxxx Xxxxx or Xxxxxx. Xxxxxx Xxxxx and Xxxxx are not a
party or subject to, and none of their assets are bound by, the provisions of
any order, writ, injunction, judgment, or decree of any Governmental Entity or
arbitrator known to Xxxxxx Xxxxx.
4.11 Taxes. Xxxxxx Xxxxx has no Liability for any federal, state or
local Taxes, except for Taxes which have accrued and are not yet payable. Xxxxxx
Xxxxx has filed or caused to be filed all Tax Returns required under applicable
law to be filed on or before the Closing Date, Xxxxxx Xxxxx has paid or made
provision for all Taxes and other charges which have or may become due for the
periods covered by such Tax Returns, and all such Tax Returns are true, correct
and complete in all material respects. None of the Tax Returns of Xxxxxx Xxxxx
are currently under investigation or audit, nor is an investigation or audit
pending to the Knowledge of JEL. There are no outstanding agreements or waivers
extending the statutory period of limitations applicable to any Xxxxxx Xxxxx Tax
Return for any period. The accounting treatment of all items of income, gain,
loss, deduction and credit as reported on all Tax Returns and estimates filed by
or on behalf of Xxxxxx Xxxxx are true, correct and complete in all material
respects, and all deferred Taxes and all Taxes due for the period ending on the
Closing Date have been accrued on the Balance Sheet as of June 30, 2003. No
Claim has ever been made by any Governmental Entity in a jurisdiction where
Xxxxxx Xxxxx does not file Tax Returns that it is or may be subject to taxation
by that jurisdiction. All Taxes owed by Xxxxxx Xxxxx or which Xxxxxx Xxxxx is
obligated to withhold from amounts owed or owing to any employee, independent
contractor, stockholder, creditor or third party have been paid. There are no
unresolved Claims concerning Xxxxxx Xxxxx' Tax Liability, and to the Knowledge
of JEL, no Basis for any such Claims exist.
4.12 Employees. Schedule 4.12 to the Disclosure Schedule hereto sets
forth a complete list of all current employees of Xxxxxx Xxxxx and Xxxxxx,
together with each employee's tenure, title or job classification, and the
current annual rate of compensation payable to each such employee. With respect
to Xxxxxx Xxxxx and Xxxxxx, and to the Knowledge of JEL, with respect to
Hoopeston, there are no unfair labor practice complaints, strikes, slowdowns,
stoppages or other controversies pending or threatened, attempts to unionize or
controversies threatened relating to, any of their respective employees. None of
00
Xxxxxx Xxxxx, Xxxxxx and, to the Knowledge of JEL, Hoopeston, is a party to any
collective bargaining agreement with respect to any of its employees or to a
written employment contract with any of its employees. There are no
understandings with respect to the employment of any officer or employee of
Xxxxxx Xxxxx or Xxxxxx which are not terminable by Xxxxxx Xxxxx or Xxxxxx
without Liability on not more than thirty (30) days' notice. No officer,
director, or employee is entitled to receive any payment of any amount under any
existing agreement, Benefit Arrangement, Employment Plan or other benefit, or to
the accrual or vesting of any other benefit or payment as a result of the
consummation of any transactions contemplated by this Agreement. Xxxxxx Xxxxx
and Xxxxxx have complied with all applicable Legal Requirements which govern
workers' compensation, equal employment opportunity and equal pay. Xxxxxx Xxxxx'
and Xxxxxx' employment of each of its employees is in compliance with all
immigration and naturalization laws of the United States.
4.13 Consents. Except as set forth on the Disclosure Schedule, no
consents, approvals' orders, or authorizations of, or registrations,
qualifications, designations, declarations or filings with, any Governmental
Entity or under any Material Contract, is or will be required on the part of
Xxxxxx Xxxxx or Xxxxxx in connection with the valid execution and delivery of
this Agreement and the Merger, or the consummation of any other transaction
contemplated hereby.
4.14 Operating Rights. Xxxxxx Xxxxx and Xxxxxx have all operating
authority, licenses, franchises, permits, certificates, consents, rights and
privileges (collectively, "Licenses") as are necessary or appropriate to the
operation of its business as now conducted. Such Licenses are in full force and
effect, no violations have been or are expected to have been recorded in respect
of any such Licenses, and no proceeding is pending or to the Knowledge of JEL
threatened, or to the Knowledge of JEL is any proceeding pending against
Hoopeston, that could result in the revocation or limitation of any such
Licenses held by Hoopeston. Xxxxxx Xxxxx and Xxxxxx have conducted their
businesses so as to comply in all material respects with all such Licenses and,
to the best of Xxxxx' Knowledge, Hoopeston has done likewise.
4.15 Compliance with Applicable Laws. The properties, assets, business
and operations of Xxxxxx Xxxxx and Xxxxxx have been and are being maintained and
conducted in compliance with all Legal Requirements to which Xxxxxx Xxxxx or
Xxxxxx is subject. No investigation or review by any Governmental Entity with
respect to Xxxxxx Xxxxx or Xxxxxx is pending, or to the Knowledge of JEL, has
any Governmental Entity indicated in writing to Xxxxxx Xxxxx or Xxxxxx any
intention to conduct the same.
4.16 Insurance. Schedule 4.16 to the Disclosure Schedule hereto sets
forth an accurate list, as of the date of this Agreement, of all insurance
policies carried by Xxxxxx Xxxxx and Xxxxxx and all insurance loss runs or
workmen's compensation claims received for the past two (2) policy years, if
any. Attached to Schedule 4.16 to the Disclosure Schedule are true, complete and
correct copies of the summaries or declaration pages from the insurance
companies of all applicable policies, all of which are in full force and effect.
All premiums payable under all such policies have been paid and Xxxxxx Xxxxx and
Xxxxxx are, to Xxxxx' Knowledge, otherwise in full compliance with the terms of
such policies (or other policies providing substantially similar coverage).
There is no threatened termination or rescission of, or material premium
increase with respect to, any such policies.
4.17 Absence of Changes. Except as set forth on Schedule 4.17 to the
Disclosure Schedule, since June 30, 2003, (i) there has not been any change or
amendment in the Certificate or Articles of Incorporation, as the case may be,
Bylaws or other governing instruments of Xxxxxx Xxxxx or Xxxxxx; (ii) any sale
or issuance of, or grant of options or rights to acquire, any shares of stock or
other securities of Xxxxxx Xxxxx or Xxxxxx or any declaration, setting aside, or
payment of dividends or redemptions in respect of any shares of stock of Xxxxxx
Xxxxx, or any direct or indirect redemption, purchase or other acquisition of
such stock of Xxxxxx Xxxxx, or any agreement, understandings or commitments to
do the same; (iii) any
16
transfer or other disposition or pledge of, or the grant of options or rights to
acquire, any of the outstanding shares of Xxxxxx Xxxxx or Xxxxxx; (iv) any
amendment, termination or revocation of any Material Contract; (v) any sale,
transfer, mortgage, pledge, or incurring of any Lien (other than Permitted Liens
and sales in the ordinary course of business) of, on or affecting any of the
assets of Xxxxxx Xxxxx or Xxxxxx valued at or above $10,000 individually or in
the aggregate; (vi) any increase in the compensation paid or payable or in the
fringe benefits provided to any employee of Xxxxxx Xxxxx or Xxxxxx, or the
adoption of any Benefit Arrangements or Employee Plans not in existence in the
fiscal year ended December 31, 2002; (vii) any damage, destruction or loss,
whether or not covered by insurance, of any of the assets of Xxxxxx Xxxxx or
Xxxxxx; (viii) any purchase or lease, or commitment for the purchase or lease,
of equipment or other capital assets not disclosed in Xxxxxx Xxxxx' Financial
Statements which is in excess of the normal, ordinary and usual requirements of
the business of Xxxxxx Xxxxx or Xxxxxx; (ix) any change that by itself or
together with other changes, has had a Material Adverse Effect on Xxxxxx Xxxxx
or Xxxxxx; (x) any agreement or arrangement made by Xxxxxx Xxxxx, Xxxxxx or any
shareholder of Xxxxxx Xxxxx to take any action which, if taken prior to the date
of this Agreement, would have made any representation or warranty set forth in
this Agreement untrue or incorrect in any material respect as of the date when
made; (xi) the commencement or written notice or written threat of commencement
of any Claim against Xxxxxx Xxxxx, Xxxxxx or any of their Affiliates; or (xii)
any dividends or other distributions of cash, property or other assets to the
shareholders of Xxxxxx Xxxxx (except as otherwise permitted under Section 7.9
hereof).
4.18 Employee Plans. Schedule 4.18 to the Disclosure Schedule hereto
sets forth a complete list of all Employee Plans and Benefit Arrangements
maintained, administered or contributed to, or otherwise participated in, by
Xxxxxx Xxxxx or Xxxxxx. True and complete copies of each such Employee Plan or
Benefit Arrangement, including amendments thereto, have been provided to
Centennial, together with true and complete copies of (i) annual reports for the
most recent three (3) years, (ii) all plan documents and the most recent summary
plan description of each such Employee Plan, together with any modifications
thereto, and (iii) the most recent favorable determination letter (if
applicable) from the Internal Revenue Service for each such Employee Plan. None
of the Employee Plans is a "multiemployer plan" as defined in Section 3(37) of
ERISA or a "multiple employer plan" as covered in Section 412(c) of the Code,
and Xxxxxx Xxxxx and Xxxxxx have not been obligated to make a contribution to
any such multiemployer or multiple employer plan. All contributions (including
all employer contributions and employee salary reduction contributions) which
are due have been paid to each such Employee Plan or Benefit Arrangement and all
contributions for any period ending on or before the Closing Date which are not
yet due have been paid to each such Employee Plan or Benefit Arrangement or
accrued in accordance with past custom and practice of Xxxxxx Xxxxx and Xxxxxx.
Each Employee Plan which is intended to be qualified under Section 401 (a) of
the Code is so qualified and each trust maintained pursuant thereto is exempt
from income tax under Section 501(a) of the Code. None of Xxxxxx Ellis, Stokes,
any Employee Plan, any trusts created thereunder, and any trustee, administrator
nor any other fiduciary thereof has engaged in a "prohibited transaction," as
defined in Section 406 of ERISA and Section 4975 of the Code, or any breach of
fiduciary duty as defined in Part 4 of Subtitle B of Title I of ERISA.
4.19 Intellectual Property Rights.
4.19.1 Subject to all prior agreements entered into between Xxxxxx
and Hoopeston, copies of which have been furnished by Xxxxxx Xxxxx to
Centennial, Xxxxxx Xxxxx and Xxxxxx own, or have the right to use, sell or
license all Intellectual Property necessary or required for the conduct of their
businesses as presently conducted and such rights to use, sell or license are
reasonably sufficient for such conduct of Xxxxxx Xxxxx' and Xxxxxx' businesses.
Xxxxxx Xxxxx and Xxxxxx have taken reasonable actions designed to
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safeguard and maintain the secrecy and confidentiality of, and its proprietary
right in, all of its Intellectual Property.
4.19.2 Neither the license, sublicense or intended use of any
Intellectual Property licensed or used by Xxxxxx Xxxxx or Xxxxxx or currently
under development by Xxxxxx Xxxxx or Xxxxxx violates any license or agreement
between Xxxxxx Xxxxx or Xxxxxx and any third party or, to the Knowledge of JEL,
infringes any Intellectual Property of any other party; and there is not pending
or to the Knowledge of JEL threatened any Claim contesting the validity,
ownership or right to use, license or dispose of any Intellectual Property or
that the proposed use, license or disposition thereof conflicts or will conflict
with the rights of any other party.
4.20 Environment, Health and Safety.
4.20.1 To the Knowledge of JEL, each of Xxxxxx Xxxxx, Xxxxxx and
Hoopeston, has complied with all Environmental, Health and Safety Laws, except
where failure to comply would not have a Material Adverse Effect, and no Claim
or notice has been filed or commenced against either of them alleging any
failure to so comply. Without limiting the generality of the preceding sentence,
Xxxxxx Xxxxx and Xxxxxx have obtained and been in compliance with all of the
terms and conditions of all Licenses and other authorizations which are required
under, and has complied with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
which are contained in, all Environmental, Health, and Safety Laws, except where
failure to comply would not have a Material Adverse Effect.
4.20.2 To the Knowledge of JEL, Xxxxxx Xxxxx and Xxxxxx have not
handled or disposed of any substance, arranged for the disposal of any
substance, exposed any employee or other individual to any substance or
condition, or owned or operated any property or facility in any manner that
could form a Basis known to Xxxxx for any present or future Claim against Xxxxxx
Xxxxx or Xxxxxx giving rise to any Liability, except where having done so would
not have a Material Adverse Effect. To the Knowledge of JEL, Xxxxxx Xxxxx and
Xxxxxx have no known Liability for damage to any site, location, or body of
water (surface or subsurface), for any illness of or personal injury to any
employee or other individual, or for any reason under any Environmental, Health,
and Safety Law which could have a Material Adverse Effect.
4.20.3 To the Knowledge of JEL, all properties used in Xxxxxx
Xxxxx' and Xxxxxx' businesses, including the Real Property, are free of
Hazardous Substances, except where the existence thereof would not have a
Material Adverse Effect.
4.21 Certain Transactions. Except as set forth on Schedule 4.21 of the
Disclosure Schedule, there are no existing or pending transactions, nor are
there any agreements or understandings, between Xxxxxx Xxxxx and Xxxxxx, on the
one hand, and any shareholder, officer or director of Xxxxxx Xxxxx or Xxxxxx, or
any Affiliates of any of them, on the other hand, including, without limitation,
any transactions, arrangements or understandings relating to the purchase or
sale of goods or services or the sale, lease or use of any of the assets of or
by Xxxxxx Xxxxx or Xxxxxx, with or without adequate compensation, or to any
indebtedness owed to or by Xxxxxx Xxxxx or Xxxxxx, in any amount whatsoever.
4.22 Bank Accounts; Powers of Attorney. Schedule 4.22 of the Disclosure
Schedule sets forth an accurate list, as of the date of this Agreement, of the
following: (i) the name of each financial institution in which Xxxxxx Xxxxx or
Xxxxxx has any account or safe deposit box; (ii) the names in which the accounts
or boxes are held; (iii) the type of account; and (iv) the name of each person
authorized to draw thereon or have access thereto. The Disclosure Schedule
hereto also sets forth the name of each Person holding a
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general or special power of attorney from Xxxxxx Xxxxx or Xxxxxx and description
of the terms of such power.
4.23 Absence of Claims Against Xxxxxx Xxxxx and Xxxxxx. Except as set
forth herein or in the Financial Statements, Xxxxx has no Claims against Xxxxxx
Xxxxx or Xxxxxx.
4.24 Employee Loans. There are no outstanding loans and/or other
advances made by Xxxxxx Xxxxx or Xxxxxx to any of its officers, directors,
shareholders, employees, agents or consultants.
4.25 Brokers' Fees. Xxxxxx Xxxxx and Xxxxx are not a party to or
obligated under any agreement with any broker, agent, or finder relating to the
transactions contemplated hereby, and neither the execution of this Agreement
nor the consummation of the transactions provided for herein will result in any
liability to any broker, agent or finder.
4.26 Full Disclosure. Neither this Agreement, the representations and
warranties by Xxxxxx Xxxxx and Xxxxx contained herein, the Exhibits or Schedules
hereto, nor any other written statement or certificate delivered or to be
furnished to Centennial in connection herewith, when read together, contain any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein not materially
misleading, in light of the circumstances under which they were made. To the
Knowledge of JEL, there is no fact which has not been disclosed to Centennial
that would have a Material Adverse Effect or would affect the ability of Xxxxxx
Xxxxx and Xxxxx to perform their obligations under this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CENTENNIAL
Centennial represents and warrants to Xxxxxx Xxxxx and Xxxxx that each
of the following statements is true, correct and complete in all material
respects as of the date of this Agreement and the Closing Date:
5.1 Organization and Standing, Certificate and Bylaws. Centennial is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has full power and authority to own its assets and
properties and to carry on its business as presently conducted. Centennial is
duly qualified and authorized to do business, and is in good standing as a
foreign corporation, in each jurisdiction where the nature of its activities or
of its properties (both owned and leased) make such qualification necessary,
except where the failure to so qualify would not have a Material Adverse Effect.
Centennial has furnished JEL with copies of its Certificate of Incorporation and
Bylaws, as amended to the date hereof. Said copies are true, correct and
complete and contain all amendments through the Closing Date.
5.2 Authorization. All corporate action on the part of Centennial, its
officers, directors and shareholders necessary for the authorization, execution
and delivery of this Agreement and the documents contemplated hereby, the
performance of all of Centennial's obligations hereunder and thereunder have
been taken prior to the Closing. This Agreement and the documents contemplated
hereby, when executed and delivered, shall constitute valid and legally binding
obligations of Centennial enforceable in accordance with their respective terms
5.3 No Conflicts. Neither the execution and delivery nor the
performance of this Agreement by Centennial will result in any of the following:
(i) a default or an event that, with notice or lapse of time or both, could be a
default, breach or violation of (A) the Certificate of Incorporation or Bylaws
of Centennial, (B) any Material Contract; (ii) the termination of any Material
Contract or the acceleration of
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the maturity of any Indebtedness or other material obligation of Centennial;
(iii) the creation or imposition of any Lien (except for Permitted Liens) on any
of the assets or properties of Centennial; (iv) the creation or imposition of
any Lien on any shares of stock of Centennial; or (v) a violation or breach of
any known writ, injunction or decree of any Governmental Entity or arbitrator to
which Centennial is a party or by which any of its properties are bound.
5.4 Consents. No consents, approvals' orders, or authorizations of, or
registrations, qualifications, designations, declarations or filings with, any
Governmental Entity or under any Material Contract, is or will be required on
the part of Centennial in connection with the valid execution and delivery of
this Agreement and the consummation of the Merger and any other transaction
contemplated hereby.
5.5 Brokers' Fees. Centennial is not a party to or obligated under any
agreement with any broker, agent, or finder relating to the transactions
contemplated hereby, and neither the execution of this Agreement nor the
consummation of the transactions provided for herein will result in any
liability to any broker, agent or finder.
5.6 Full Disclosure. Neither this Agreement, the representations and
warranties by Centennial contained herein, the Exhibits or Schedules hereto, nor
any other written statement or certificate delivered or to be furnished to
Xxxxxx Xxxxx or Xxxxx in connection herewith, when read together, contain any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein not materially
misleading, in light of the circumstances under which they were made. To the
Knowledge of Centennial, there is no fact which has not been disclosed to Xxxxxx
Xxxxx and Xxxxx that would have a Material Adverse Effect or would affect the
ability of Centennial to perform its obligations under this Agreement.
ARTICLE VI
CONDUCT OF BUSINESS PENDING CLOSING
During the period commencing on the date hereof and through the Closing
Date, Xxxxx and Xxxxxx shall comply with the following:
6.1 Qualification. Xxxxxx Xxxxx and Xxxxxx shall maintain all
qualifications to transact business and remain in good standing in their
jurisdiction of incorporation and in the foreign jurisdictions in which Xxxxxx
Xxxxx or Xxxxxx owns or leases any property or conducts any business.
6.2 Ordinary Course. Xxxxxx Xxxxx and Xxxxxx shall conduct their
business in, and only in, the Ordinary Course of Business and, to the extent
consistent with such business, shall not make or institute any unusual or novel
methods of management, accounting, or operation that vary materially from those
methods used by Xxxxxx Xxxxx and Xxxxxx as of June 30, 2003. Xxxxxx Xxxxx and
Xxxxxx will use commercially reasonable efforts to preserve their business
organization intact, to keep available to Xxxxxx Xxxxx and Xxxxxx their present
officers and employees, and to preserve their present relationships with
suppliers, customers, and others having business relationships with Xxxxxx Xxxxx
and Xxxxxx. Xxxxxx Xxxxx and Xxxxxx shall maintain its properties and assets in
such condition and repair as such properties and assets are in as of the date
hereof.
6.3 Corporate Changes. Xxxxxx Xxxxx and Xxxxxx shall not (i) amend its
Certificate or Articles of Incorporation, as the case may be, or Bylaws (or
equivalent documents); (ii) acquire by merging or consolidating with, or
agreeing to merge or consolidate with, or purchase substantially all of the
stock or assets of, or otherwise acquire, any business or any corporation,
partnership, association or other business organization or division thereof
except as contemplated hereby; (iii) enter into any partnership or joint
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venture; (iv) except as provided in Section 7.9, declare, set aside, make or pay
any dividend or other distribution in respect of its capital stock or purchase
or redeem, directly or indirectly, any shares of its capital stock; (v) issue or
sell any shares of its capital stock of any class or any options, warrants,
conversion or other rights to purchase any such shares or any securities
convertible into or exchangeable for such shares; or (vi) liquidate or dissolve
or obligate itself to do so.
6.4 Indebtedness. Xxxxxx Xxxxx and Xxxxxx shall not incur any
Indebtedness, sell any debt securities or lend money to or guarantee the
Indebtedness of any Person. Xxxxxx Xxxxx and Xxxxxx shall not restructure or
refinance their existing Indebtedness.
6.5 Accounting. Xxxxxx Xxxxx and Xxxxxx shall not make any change in
the accounting principles, methods or practices followed by them or depreciation
or amortization policies or rates heretofore adopted by them. Xxxxxx Xxxxx and
Xxxxxx shall maintain their books, records, and accounts in accordance with GAAP
applied on a basis consistent with that of prior periods.
6.6 Compliance with Legal Requirements. Xxxxxx Xxxxx and Xxxxxx shall
comply promptly and in all material respects with all Legal Requirements imposed
upon them, their operations and with respect to the transactions contemplated by
this Agreement, and shall cooperate promptly with, and furnish information to,
Centennial in connection with any such requirements imposed upon Centennial, or
upon any of its Affiliates, in connection therewith or herewith.
6.7 Disposition of Assets. Except in the Ordinary Course of Business,
Xxxxxx Xxxxx and Xxxxxx shall not sell, transfer, license, lease or otherwise
dispose of, or suffer or cause the encumbrance by any Lien other than Permitted
Liens upon any of their properties or assets, tangible or intangible, or upon
any interest therein.
6.8 Compensation. Except in the Ordinary Course of Business, Xxxxxx
Xxxxx and Xxxxxx shall not (i) adopt or amend in any material respect any
collective bargaining, bonus, profit-sharing, compensation, stock option,
pension, retirement, deferred compensation, Employee Plan, Benefit Arrangement,
or any other agreement, trust, fund or arrangement for the benefit of employees
other than to comply with any Legal Requirement; or (ii) pay, or make any
accrual or arrangement for payment of, any increase in compensation, bonuses or
special compensation of any kind, or any severance or termination pay to, or,
except as contemplated by Section 7.9 hereof and other provisions of this
Agreement, enter into any employment or loan or loan guarantee agreement with,
any shareholder or any current or former officer, director, employee or
consultant of Xxxxxx Xxxxx.
6.9 Modification or Breach of Agreements; New Agreements. Except in the
Ordinary Course of Business, Xxxxxx Xxxxx and Xxxxxx shall not terminate or
modify, or commit or cause or, suffer to be committed any act that will result
in breach or violation of any term of or (with or without notice or passage of
time, or both) constitute a default under or otherwise give any Person a basis
for nonperformance under, any Material Contract, written or oral. Xxxxxx Xxxxx
and Xxxxxx shall refrain from becoming a party to any contract or commitment
other than in the Ordinary Course of Business. Xxxxxx Xxxxx and Xxxxxx shall
meet all of its contractual obligations in accordance with their respective
terms.
6.10 Capital Expenditures. Except in the Ordinary Course of Business,
except for capital expenditures or commitments necessary to maintain their
properties and assets in good condition and repair (the amount of which shall
not exceed $20,000 individually or in the aggregate), Xxxxxx Xxxxx and Xxxxxx
shall not purchase or enter into any contract to purchase any capital assets
without informing Centennial of the same in writing.
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6.11 Consents. Xxxxxx Xxxxx and Xxxxxx shall use commercially
reasonable efforts to obtain any consent, authorization or approval of, or
exemption by, any Governmental Entity or Person required to be obtained or made
by any Party hereto in connection with the transactions contemplated hereby or
the taking of any action in connection with the consummation thereof.
6.12 Maintenance of Insurance. Xxxxxx Xxxxx and Xxxxxx shall maintain
their policies of insurance in full force and effect on substantially the same
terms and conditions as in effect on June 30, 2003, and shall not do, permit or
willingly allow to be done any act by which any of said policies of insurance
may be suspended, materially impaired or canceled.
6.13 Discharge. Except in the Ordinary Course of Business, Xxxxxx Xxxxx
and Xxxxxx shall not cancel, compromise, release or discharge any Claim of
Xxxxxx Xxxxx or Xxxxxx upon or against any Person or waive any right of Xxxxxx
Xxxxx or Xxxxxx of material value, and not discharge any Lien upon any asset of
Xxxxxx Xxxxx or Xxxxxx or compromise any debt or other obligation of Xxxxxx
Xxxxx or Xxxxxx to any Person other than Liens, debts or obligations with
respect to current Liabilities of Xxxxxx Xxxxx and Xxxxxx.
6.14 Claims. Xxxxxx Xxxxx and Xxxxxx shall not institute, settle or
agree to settle any Claim before any Governmental Entity.
6.15 Taxes and Tax Assessments. Xxxxxx Xxxxx and Xxxxxx shall pay, when
due, and prior to the imposition or assessment of any interest, penalties or
Liens by reason of the nonpayment of, all Taxes assessed against Xxxxxx Xxxxx or
Xxxxxx, their assets, properties or operations. Xxxxxx Xxxxx and Xxxxxx shall
furnish promptly to Centennial a copy of all notices of proposed assessment or
similar notices or reports that are received from any taxing authority and which
relate to Xxxxxx Xxxxx' or Xxxxxx' operations for periods ending on or prior to
the Closing Date.
ARTICLE VII
ADDITIONAL COVENANTS
7.1 Covenants of Xxxxxx Xxxxx. During the period from the date hereof
through the Closing Date, Xxxxxx Xxxxx agrees to:
7.1.1 Comply promptly with all applicable Legal Requirements
imposed upon it with respect to the transactions contemplated by this Agreement,
and shall cooperate promptly with, and furnish information to, Centennial in
connection with any such requirements imposed upon Centennial or upon any of
Centennial's Affiliates in connection therewith or herewith;
7.1.2 Use its reasonable best efforts to obtain (and to cooperate
with Centennial in obtaining) any consent, authorization or approval of, or
exemption by, any Person required to be obtained or made by Xxxxxx Xxxxx and/or
Xxxxx in connection with the transactions contemplated by this Agreement;
7.1.3 Use its reasonable best efforts to bring about the
satisfaction of the conditions precedent to Closing set forth in Section 3.6,
above;
7.1.4 Promptly advise Centennial orally and, within three (3)
business days thereafter, in writing of any change in Xxxxxx Xxxxx' business or
condition that has had or would reasonably be expected to have a Material
Adverse Effect on Xxxxxx Xxxxx;
7.1.5 Deliver to Centennial prior to the Closing a written
statement disclosing any untrue statement in this Agreement or any Exhibit or
Schedule hereto (or supplement thereto) or document furnished pursuant hereto,
or any omission to state any material fact required to make the statements
22
herein or therein contained complete and not misleading, immediately upon the
discovery of such untrue statement or omission, accompanied by a written
supplement to any Exhibit or Schedule to this Agreement that may be affected
thereby; provided, however, that the disclosure of such untrue statement or
omission shall not prevent Centennial from terminating this Agreement pursuant
to Section 8.1.2 below, at any time at or prior to the Closing in respect of any
original untrue or misleading statement; and
7.1.6 Prior to the Closing, deliver to Centennial the Disclosure
Schedule.
7.2 Covenants of Centennial. During the period from the date hereof to
the Closing Date, Centennial shall:
7.2.1 Comply promptly with all applicable Legal Requirements
imposed upon it with respect to the transactions contemplated by this Agreement,
and shall cooperate promptly with, and furnish information to, Xxxxx and Xxxxxx
Xxxxx in connection with any such requirements imposed upon Xxxxx or Xxxxxx
Xxxxx or upon any of Xxxxxx Xxxxx' Affiliates in connection therewith, or
herewith;
7.2.2 Use its reasonable best efforts to obtain any consent,
authorization or approval of, or exemption by, any Person required to be
obtained or made by Centennial in connection with the transactions contemplated
by this Agreement;
7.2.3 Use its reasonable best efforts to bring about the
satisfaction of the conditions precedent to Closing set forth in Section 3.7 of
this Agreement; and
7.2.4 Promptly advise Xxxxxx Xxxxx and Xxxxx orally and, within
three (3) business days thereafter, in writing of any change in Centennial's
business or condition that has had or would reasonably be expected to have a
Material Adverse Effect on Centennial.
7.3 Tax Advice. Xxxxx shall assume and be fully responsible for any and
all Liability, including without limitation any and all Tax Liability, incurred
by them, which is caused by, arises from, or relates to the merger of Xxxxxx
Xxxxx into Centennial and the other transactions set forth herein. Xxxxxx Xxxxx
and Xxxxx acknowledge that they have received their own independent tax advice
with respect to this Agreement and the transactions contemplated thereby, and
are not in any way relying on any statements or advice of Centennial or any of
their officers, directors, employees, agents or representatives with respect to
such matters.
7.4 Access and Information.
7.4.1 During the period commencing on the date hereof and
continuing through the Closing Date, Xxxxx shall cause Xxxxxx Xxxxx and Xxxxxx
to afford to Centennial and to its accountants, counsel, and other
representatives, reasonable access during regular business hours and without
undue interruption to its business to all of its properties, books, contracts,
commitments, records and personnel and, during such period, to cause Xxxxxx
Xxxxx to furnish promptly to Centennial all information concerning its business,
properties and personnel as Centennial may reasonably request.
7.4.2 Except to the extent permitted by the provisions of Section
7.7, below, Centennial shall hold in confidence, and shall use reasonable
efforts to ensure that its employees and representatives hold in confidence, all
such information supplied to it by Xxxxx or Xxxxxx Xxxxx concerning Xxxxxx Xxxxx
or Xxxxxx and shall not disclose such information to any third party except as
may be required by any Legal Requirement and except for information that (i) is
or becomes generally available to the public other than as result of disclosure
by Centennial or its representatives; (ii) becomes available to Centennial or
its representatives from a third party other than Xxxxx or Xxxxxx Xxxxx and
Centennial or its representatives
23
have no reason to believe that such third party is not entitled to disclose such
information; (iii) is known to Centennial or its representatives on a
nonconfidential basis prior to its disclosure by Xxxxx or Xxxxxx Xxxxx; (iv) is
made available by Xxxxx or Xxxxxx Xxxxx to any other Person on a non-restricted
basis. Centennial's obligations under the foregoing sentence shall expire upon
completion of the Closing or as Centennial is required to make disclosure in
connection with the IPO or the registration statement filed with the SEC.
7.4.3 Centennial shall hold in confidence, and shall use reasonable
efforts to ensure, that its employees and representatives hold in confidence,
all information supplied to it by Xxxxxx Xxxxx or Xxxxx that is personal
information of Xxxxx. Centennial's obligations under the foregoing sentence
shall survive the Closing indefinitely.
7.5 Expenses. All costs and expenses of Xxxxx (including, without
limitation, all legal fees and expenses and costs) incurred in connection with
this Agreement, the transactions contemplated hereby, the IPO and all related
transactions shall be paid by Xxxxxx Xxxxx. All costs and expenses of the other
parties hereto (including, without limitation, all legal fees and expenses and
costs) incurred in connection with this Agreement, the transactions contemplated
hereby, the IPO and all related transactions shall be paid by the party
incurring such costs or expenses.
7.6 Certain Notifications. At all times from the date hereof to the
Closing Date, each Party shall promptly notify the others in writing of the
occurrence of any event that will or reasonably would be expected to result in
the failure to satisfy any of the conditions specified in Sections 3.6 and 3.7
above.
7.7 Publicity. At all times prior to the Closing Date, each Party shall
obtain the consent of all other Parties hereto prior to issuing, or permitting
any of its directors, officers, employees or agents to issue, any press release
or other information to the press, employees of Xxxxxx Xxxxx or any third party
with respect to this Agreement or the transactions contemplated hereby;
provided, however, that no party shall be prohibited from supplying any
information to any of its representatives, agents, attorneys, advisors, and
others to the extent necessary to complete the transactions contemplated hereby
so long as such representatives, agents, attorneys, advisors, and others are
made aware of the terms of this Section 7.7. Nothing contained in this Agreement
shall prevent any party to this Agreement at any time from furnishing any
required information to any Governmental Entity or others in connection with the
IPO or pursuant to a Legal Requirement or from complying with its legal or
contractual obligations; provided that the Party furnishing such information
shall have used its reasonable best efforts to comply with this provision first,
and in any event does so only with the advice of counsel.
7.8 Further Assurances.
7.8.1 Subject to the terms and conditions of this Agreement, each
of the Parties hereto agrees to use all reasonable efforts to take, or cause to
be taken, all action, and to do, or cause to be done, all things necessary,
proper or advisable under applicable Legal Requirements, to consummate and make
effective the transactions contemplated by this Agreement.
7.8.2 If at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, Xxxxx and
the proper officers or directors of Centennial and Xxxxxx Xxxxx, as the case may
be, shall take or cause to be taken all such necessary or convenient action and
execute, and deliver and file, or cause to be executed, delivered and filed, all
necessary or appropriate documentation.
7.9 Pre-Closing Distribution to Xxxxx. Immediately prior to Closing,
Xxxxxx Xxxxx shall make a distribution to Xxxxx of the total net profit for
Xxxxxx Xxxxx, on a consolidated tax basis, for the period
24
from January 1, 2003, through Closing. The final amount of such net profit will
not be known as of Closing and the parties agree to make a good faith estimate
of such amount prior to Closing, with Xxxxxx Xxxxx distributing the amount of
the agreed upon estimate to Xxxxx immediately prior to Closing. The amount of
the net profit indicated on the tax return for the Short Period Year prepared
and filed with the IRS under Section 7.10 shall be the final amount of net
profit to be distributed to Xxxxx under this Section 7.9. Within 10 days
following the filing of such return with the IRS, a final settlement and payment
shall be made, with the party owning making a payment to the party owed of the
difference between the estimate and the final amount.
7.10 Income Tax Return For Xxxxxx Xxxxx and Xxxxxx. Upon Closing, the
"S" tax status of Xxxxxx Xxxxx and Xxxxxx will terminate and the tax year
beginning on January 1, 2003, will end as of the Closing (the "Short Year
Period"). JEL agrees to prepare and file, on or prior to its due date (as
extended), the Federal and State income tax returns for both Xxxxxx Xxxxx and
Xxxxxx for the Short Year Period. Centennial shall provide JEL with access to
and copies of all books and records of Xxxxxx Xxxxx or Xxxxxx as may be
necessary to prepare such tax returns and shall reimburse JEL for the costs and
expenses incurred in preparing such returns.
7.11 Indemnification Post Closing. As further consideration for the
transactions set forth herein, Centennial shall indemnify Xxxxx after the
Closing pursuant to the terms and conditions of the Indemnification Agreement in
the form attached hereto as Exhibit 3.5.4, the original of which will be
executed and delivered to Xxxxx at Closing pursuant to Section 3.5.4 hereof.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time prior to
the Effective Time:
8.1.1 By written consent of Centennial and Xxxxx;
8.1.2 By Xxxxxx Xxxxx and Xxxxx as a group, on the one hand, or by
Centennial, on the other hand, if there has been a breach, failure to fulfill or
default (collectively, a "Breach") on the part of the other Party (the
"Breaching Party") of any of the representations and warranties contained herein
or in the due and timely performance and satisfaction of any of the covenants,
agreements or conditions contained herein;
8.1.3 By Xxxxxx Xxxxx and Xxxxx as a group, on the one hand, or by
Centennial, on the other hand, if there shall be a final non-appealable order of
a Governmental Entity or arbitrator in effect preventing consummation of the
transactions hereunder; or there shall be any action taken, or any statute,
rule, regulation or order enacted, promulgated or issued or deemed applicable to
the transactions hereunder by any Governmental Entity or arbitrator which would
make the consummation of the transactions illegal; or
8.1.4 By Xxxxxx Xxxxx and Xxxxx as a group, on the one hand, or by
Centennial, on the other hand, if the IPO shall not have been declared effective
on or before October 31, 2003.
8.2 Effect of Termination. In the case of any termination of this
Agreement pursuant to Section 8.1, above, this Agreement shall forthwith become
void, and there shall be no Liability or obligation on the part of any Party or
its officers, directors or shareholders. Notwithstanding the foregoing sentence,
(i) the provisions of Section 7.4.2 and 7.5 shall remain in full force and
effect and survive any termination of this Agreement; and (ii) each Party shall
remain liable for any breach of this Agreement or other wrongful conduct prior
to its termination.
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8.3 Amendment. This Agreement may be amended at any time by a written
instrument executed by the Parties. Any amendment effected pursuant to this
Section 8.3 shall be binding upon all Parties.
8.4 Waiver. Any term or provision of this Agreement may be waived in
writing at any time by the Party or Parties entitled to the benefits thereof.
Any waiver effected pursuant to this Section 8.4 shall be binding upon all
Parties hereto. No failure to exercise and no delay in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege preclude the exercise of any
other right, power or privilege. No waiver of any breach of any covenant or
agreement hereunder shall be deemed a waiver of a preceding or subsequent breach
of the same or any other covenant or agreement. The rights and remedies of each
Party under this Agreement are in addition to all other rights and remedies,
whether at law, in equity or otherwise, that such Party may have against the
other Parties.
ARTICLE IX
INDEMNIFICATION
9.1 Survival of Representations and Warranties. The representations and
warranties contained in Articles IV and V of this Agreement or in any writing
delivered pursuant hereto or at the Closing, along with the obligations to
indemnify under this Article IX, shall survive the Effective Time and the
Closing and the consummation of the transactions contemplated hereby until the
first anniversary of the Closing Date, at which time they shall terminate and be
of no further force and effect.
9.2 Indemnification by JEL. Effective as of the Closing, JEL, in
consideration for the exchange of the Xxxxxx Xxxxx Shares for the Centennial
Preferred Stock, covenants and agrees with Centennial and the Surviving
Corporation and its officers, directors, employees, shareholders, assigns,
successors and Affiliates (a "Centennial Indemnified Party") to indemnify and
hold harmless a Centennial Indemnified Party from, against and in respect of any
and all Losses suffered, sustained, incurred or paid by any Centennial
Indemnified Party in connection with resulting from or arising out of, directly
or indirectly:
9.2.1 any breach of any representation or warranty of Xxxxx or
Xxxxxx Xxxxx set forth in this Agreement or any certificate, document or
instrument delivered by or on behalf of Xxxxx or Xxxxxx Xxxxx in connection
herewith; or
9.2.2 any material non-fulfillment of any covenant or agreement on
the part of Xxxxx or Xxxxxx Xxxxx in this Agreement.
Payment shall not be a condition precedent to recovery under the above
indemnities.
9.3 Indemnification by Centennial. Effective as of the Closing, subject
to any limitations on indemnification contained in the DGCL, Centennial shall,
to the fullest extent permitted under applicable law and regardless of whether
the Merger becomes effective, and after the Effective Time, the Surviving
Corporation shall, to the fullest extent permitted under applicable law, and
each of Centennial and the Surviving Corporation covenants and agrees with Xxxxx
and his or her heirs, successors and assigns (a "Xxxxx Indemnified Party"), to
indemnify and hold harmless a Xxxxx Indemnified Party from, against and in
respect of any and all Losses suffered, sustained, incurred or paid by any Xxxxx
Indemnified Party in connection with resulting from or arising out of, directly
or indirectly:
26
9.3.1 any breach of any representation or warranty of Centennial
set forth in this Agreement or any certificate, document or instrument delivered
by or on behalf of Centennial in connection herewith; or
9.3.2 any non-fulfillment of any covenant or agreement on the part
of Centennial in this Agreement.
Payment shall not be a condition precedent to recovery under the above
indemnities.
9.4 Third-Party Claims. In the event any third party asserts any Claim
with respect to any matter as to which the indemnities in this Agreement relate,
the Party or Person against whom the Claim is asserted (the "Indemnified Party")
shall give prompt notice to the other Party or Person (the "Indemnifying
Party"), and the Indemnifying Party shall have the right at its election to take
over the defense or settlement of the third-party Claim at its own expense by
giving prompt notice to the Indemnified Party. If the Indemnifying Party does
not give such notice and does not proceed diligently so to defend the
third-party Claim within thirty (30) days after receipt of the notice of the
third-party Claim, the Indemnifying Party shall be bound by any defense or
settlement that the Indemnified Party may make as to those claims and shall
reimburse the Indemnified Party for its Losses related to the defense or
settlement of the third-party Claim. The Parties shall cooperate in defending
against any asserted third-party Claims. For purposes of this Article IX, the
reference to this Agreement includes any certificate, Disclosure Schedule,
Exhibit, list, summary or other information provided or delivered to a party by
the Indemnifying Party or its agents and affiliates in connection with this
Agreement.
9.5 Indemnification Exclusive. The indemnification provisions of this
Article IX are the sole and exclusive remedy any Party may have for breach of
representation, warranty, covenant or agreement set forth in this Agreement;
provided, however, that the foregoing does not supercede, restrict, limit or
otherwise affect Xxxxx' rights, remedies and benefits under (i) any director and
officer liability insurance policy held by Centennial, as to which Xxxxx is an
endorsed party, and (ii) the Indemnification Agreement to be executed by
Centennial and delivered to Xxxxx at Closing under Section 3.5.4.
9.6 Access and Information. With respect to any Claim for
indemnification hereunder, the Indemnified Party will give to the Indemnifying
Party and its counsel, accountants and other representatives full and free
access during normal business hours and upon the giving of reasonable prior
notice to their books and records relating to such Claims, and to their
employees, accountants, counsel and other representatives, all without charge to
the Indemnifying Party, except for reimbursement of reasonable out-of-pocket
expenses. The Indemnified Party agrees to maintain any of its books and records
which may relate to a Claim for indemnification hereunder for such period of
time as may be necessary to enable the Indemnifying Party to resolve such Claim;
provided that the failure to do so shall not relieve the Indemnifying Party of
any obligation hereunder unless the Indemnifying Party demonstrates that the
failure to do so substantially prejudiced the Indemnifying Party in the defense
of any third-party proceeding, and then only to the extent so prejudiced.
9.7 Mitigation. The Indemnified Parties agree to mitigate their Losses
and use their reasonable efforts to collect any indemnifiable damages from any
available insurer or third-party indemnitors before collecting from the
Indemnifying Party; provided, however, nothing in the foregoing sentence shall
preclude any Indemnified Party from filing a Claim against the Indemnifying
Party from the outset. If any amounts are recovered from an insurer or third
party after payment to an Indemnified Party, the recovering party (or parties)
shall promptly pay over to such Indemnifying Party (or Parties) any such
recovered amounts, but only to the extent of any Losses with respect to such
matter, after giving effect to any tax implications with respect to such
recovered amounts. Centennial shall cause Xxxxxx Xxxxx to continue to maintain
the same or comparable insurance coverage, as in effect at the Closing, to the
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extent such coverage protects Xxxxxx Xxxxx and Xxxxx with respect to their
representations and warranties hereunder.
9.8 Right of Set-Off. Any Party to this Agreement shall be entitled to
set-off against any amounts due to another Party under the terms of this
Agreement or under any additional agreement executed in connection herewith, any
amounts due from such other Party under the terms of this Agreement.
9.9 Limitations. Notwithstanding any other provisions contained in this
Agreement, the obligations of the parties to indemnify the other parties under
this Article IX are subject to the following limitations:
9.9.1 JEL shall not be obligated to indemnify Centennial for any
Losses arising under Section 9.2.1 above if Centennial or any of its officers
and directors had Knowledge of the breach as of the Closing;
9.9.2 Centennial shall not be obligated to indemnify Xxxxx for any
Losses arising under Section 9.3.1 above if Xxxxx had Knowledge of the breach as
of the Closing;
9.9.3 JEL's obligations shall be limited to an amount equal to
$1,000,000 in the aggregate and, notwithstanding anything to the contrary
contained in this Agreement, such amount may only be recovered by Centennial by
set off against the liquidation preference of the Preferred Stock held by JEL;
9.9.4 Neither party shall assert a claim for indemnification until
the total of all claims exceed an aggregate amount of $50,000 (the "Threshold
Amount"). Once the claims exceed the Threshold Amount, such party can assert and
recover all amounts owed hereunder, excluding the initial $50,000 representing
the Threshold Amount;
9.9.5 JML shall have no obligation to indemnify Centennial under
this Article IX; and
9.9.6 No party shall be liable for any consequential damages,
including lost profits.
ARTICLE X
GENERAL PROVISIONS
10.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Colorado as applied to agreements among Colorado
residents, made and to be performed entirely within the State of Colorado.
10.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
Parties hereto.
10.3 Entire Agreement. This Agreement, the Exhibits and Schedules
hereto, and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement among the Parties with regard to the
subject matter hereof and no Party shall be liable or bound to any other Party
in any manner by any representations, warranties, covenants, or agreements
except as specifically set forth herein or therein. Nothing in this Agreement,
express or implied, is intended to confer upon any Person, other than the
Parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or Liabilities under or by reason of this Agreement,
except as expressly provided herein.
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10.4 Severability. In the event any provision of this Agreement shall
be invalid, illegal, or unenforceable, it shall, to the extent practicable, be
modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the Parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
10.5 Notice. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given (i) if
delivered personally (including by overnight express or messenger), upon
delivery; (ii) if delivered by registered or certified mail, return receipt
requested, upon the earlier of actual delivery or three (3) days after being
mailed; or (iii) if given by facsimile, upon confirmation of transmission by
facsimile, in each case to the Parties at the following addresses:
(a) If to Centennial, addressed to:
Centennial Specialty Foods Corporation
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Chief Executive Officer
Facsimile: (000) 000-0000
(b) If to Xxxxx or Xxxxxx Xxxxx, addressed to:
Xxxxx X. Xxxxx
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
10.6 Construction. Parties to this Agreement have participated jointly
in the negotiation and drafting of this Agreement and have had competent counsel
of their own choosing. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
10.7 Arbitration. Any controversy or claim as to the provisions of this
Agreement between or among any of the Parties shall be submitted for binding
arbitration. The arbitration shall be conducted by a single arbitrator of the
American Arbitration Association ("AAA") in accordance with the applicable
Commercial Arbitration Rules of the AAA then in effect. Any arbitration under
this Section 10.7 shall take place in Denver, Colorado.
10.8 Headings. The headings of the Articles and Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
10.9 Counterparts. This Agreement may be executed by facsimile and in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one instrument.
10.10 Schedules, and Exhibits. The Schedules and Exhibits to this
Agreement are incorporated herein and, by this reference, made a part hereof as
if fully set forth at length herein.
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IN WITNESS WHEREOF, the foregoing Agreement and is hereby executed as
of the date first above written.
CENTENNIAL SPECIALTY FOODS CORPORATION,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------------
Its: CEO
--------------------------------------------
XXXXXX XXXXX FOODS, INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------------
Its: President
--------------------------------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
------------------------------------------------
Xxxxx X. Xxxxx
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
------------------------------------------------
Xxxxx X. Xxxxx
Exhibit List
Exhibit 3.4 Xxxxxx Xxxxx Officer's Certificate
Exhibit 3.5.4 Form of Indemnification Agreement
Schedule List
Schedule 4.6 Material Contracts
Schedule 4.7 Liens on Personal Property
Schedule 4.8 Real Property
Schedule 4.12 Employees
Schedule 4.16 Insurance
Schedule 4.17 Material Changes
Schedule 4.18 Employee Plans
Schedule 4.21 Certain Transactions
Schedule 4.22 Bank Accounts/Powers of Attorney
30
DISCLOSURE SCHEDULES TO THE AGREEMENT AND PLAN OF MERGER
DATED OCTOBER 20, 2003
BY AND AMONG
CENTENNIAL SPECIALITY FOODS CORPORATION,
XXXXXX XXXXX FOODS, INC.
AND
XXXXX X. XXXXX AND XXXXX X. XXXXX
THESE DISCLOSURE SCHEDULES SHOULD BE READ AND CONSIDERED IN THEIR ENTIRETY.
DISCLOSURE ON ANY PARTICULAR SCHEDULE THAT IS RELEVANT TO ONE OF THE OTHER
SCHEDULES HEREIN IS HEREBY INCORPORATED BY REFERENCE INTO SUCH OTHER SCHEDULE.
SCHEDULE 4.6
Material Contracts
o CIT building loan and mortgage documents (Promissory Note, Deed of
Trust, Security Agreement and Fixture Filing, and Guaranty Agreement,
all dated September 29, 1998).
o Agreements with Hoopeston Foods Denver Corporation (Lease Agreement,
Equipment Lease, Exclusive License, Co-Pack Agreement, Lease Override
Agreement, EBITDA Overview Committee Agreement, and related agreements,
all dated January 29, 2001).
o Office lease at 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000.
The term of the lease expires in two months, converting to a
month-to-month basis.
Note: Xxxxxx' broker agreements are short-term in nature, based on monthly
performance related to customer sales in their respective regions. The
agreements are generally month-to-month.
SCHEDULE 4.7
Liens on Personal Property
o CIT deed of trust, security agreement and fixture filing covers the
production facility and real property located at 0000 Xxxx Xxxxxx,
Xxxxxx, XX 00000, fixtures and certain personal property, including
equipment
o The notes payable to Xxx and Xxxx Page are secured by the equipment and
accounts receivables
o Other liens and security interests as indicated on the UCC search dated
______________, 2003, a copy of which is attached hereto.
SCHEDULE 4.8
Real Property
o The production facility and real property located at 0000 Xxxx Xxxxxx,
Xxxxxx, XX 00000. The production facility is leased to Hoopeston Foods
Denver Corporation.
SCHEDULE 4.12
Employees
o There are currently no employees of Xxxxxx Canning Company or Xxxxxx /
Xxxxx Foods, Inc. The employees providing services for Xxxxxx Canning
Company or Xxxxxx / Xxxxx Foods, Inc. reside in a company called Accent
Management Group, LLC. These employees perform management and
operational services to Xxxxxx Canning Company and Xxxxxx / Xxxxx
Foods, Inc. The employees of Accent Management Group, LLC include the
following individuals:
Xxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
Additionally, J. Xxxxxxx Xxxxxx provides consulting services to Xxxxxx
Canning Company and Xxxxxx / Xxxxx Foods, Inc.
SCHEDULE 4.17
Material Changes
o The president of Hoopeston Foods recently passed away. His death was
unexpected. The management of Hoopeston Foods is being reorganized,
with Xxxxxxx Xxxxxxxxx (currently CFO) assuming the acting role as
president.
SCHEDULE 4.16
Insurance
To be provided.
SCHEDULE 4.18
Employee Plans
o There are currently no Employee Plans or Benefit Arrangements.
SCHEDULE 4.21
Certain Transactions
o As discussed in SCHEDULE 4.12, Accent Management Group, LLC provides
management and personnel services to Xxxxxx Canning Company and Xxxxxx
/ Xxxxx Foods, Inc. The services are provided on a month-by-month
basis. Accent Management Group, LLC is owned by Xxxxxxx X. Xxxxxx, the
President of Xxxxxx Xxxxx Foods, Inc.
SCHEDULE 4.22
Bank Accounts / Power of Attorney
o The company maintains it bank accounts at Xxxxx Fargo Bank, N.A. The
accounts maintained are listed below:
o 475-0000000 ZBA account (used for check payments)
o 475-0000000 Operating account (retail lockbox deposits)
