AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER is made
this 30th day of March, 2005 by and among UNIVERSAL CAPITAL MANAGEMENT, INC., a
Delaware corporation ("Universal"), BF ACQUISITION GROUP IV, INC., a Florida
corporation ("BF"), XXXXXXX X. XXXXXXX ("Xxxxxxx"), and XXXXX X. XXXX ("Bovi"),
and amends and restates in its entirety the Agreement and Plan of Merger by and
among Universal, BF, Xxxxxxx and Xxxx.
BACKGROUND:
Universal and BF desire to merge and have entered into this
Agreement to set forth the terms and conditions of the merger. This Agreement
and Plan of Merger has been adopted and approved by the shareholders and
directors of Universal in accordance with the Delaware General Corporation Law
("DGCL"), and the shareholders and directors of BF in accordance with the
Florida Business Corporation Act.
NOW THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter contained, and intending to be legally bound, the
parties each agree as follows:
1. Merger. Upon and subject to all of the terms and conditions
set forth herein, BF shall merge (the "Merger") with and into Universal which
shall survive and continue to do business under the name "Universal Capital
Management Inc." as a Delaware corporation (the "Surviving Corporation").
2. Effective Time. The Merger shall become effective at such
time (the "Effective Time") as (a) a Certificate of Merger is filed with the
Secretary of State of the State of Delaware and (b) the Articles of Merger is
filed with the Department of State of the State of Florida. Such filings shall
be made simultaneously with or as soon as practicable after the closing of the
transactions contemplated by this Agreement.
3. Certificate of Incorporation of Surviving Corporation. The
Certificate of Incorporation of Universal as in effect at the Effective Time
shall constitute, from and after the Effective Time, the Certificate of
Incorporation of the Surviving Corporation until amended in accordance with the
DGCL and the By-laws of the Surviving Corporation.
4. By-laws of Surviving Corporation. The By-laws of Universal
as in effect at the Effective Time shall constitute, from and after the
Effective Time, the By-laws of the Surviving Corporation until amended in
accordance with the DGCL and such By-laws.
5. Directors and Officers of Surviving Corporation. The
directors of Universal immediately prior to the Effective Time shall be the
directors of the Surviving Corporation from and after the Effective Time until
their respective successors have been duly elected and qualified. The officers
of Universal immediately prior to the Effective Time shall,
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from and after the Effective Time, be the officers of the Surviving Corporation,
each holding the same respective position in the Surviving Corporation as such
person held in Universal immediately before the Effective Time, until such
person's successor has been duly elected and qualified.
6. Exchange of Stock. As of the Effective Time by virtue of
the Merger and without any further action on the part of the shareholders of BF,
each such shareholder shall be entitled to receive, in exchange for each share
of common stock of BF, One-Half (0.5) share of voting common stock of Universal,
par value one-tenth of a cent ($0.001) per share. Notwithstanding the actual
date of the delivery by any BF shareholder of physical possession of
certificates for shares of capital stock of BF, the exchange and transfer of
legal title and beneficial ownership of such shares shall for all purposes be
deemed to occur as of the Effective Time. Each share of BF, if any, owned by BF
immediately prior to the Effective Time shall be canceled and shall cease to
exist from and after the Effective Time.
7. Representations and Warranties of BF. As a material
inducement to Universal to enter into this Agreement and to close hereunder, BF
hereby makes the following representations and warranties to and with Universal:
(a) Corporate Status; Outstanding Stock. BF is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida and has the power and authority to own its properties
and to carry on its business as it is now being conducted. BF is not required to
and has not qualified to do business as a foreign corporation in any
jurisdiction. BF has an authorized capital consisting of (i) Five Million
(5,000,000) shares of preferred stock none of which is issued or outstanding and
(ii) Fifty Million (50,000,000) shares of common stock, par value one-tenth of a
cent ($0.001) per share, of which nine hundred twenty-five thousand (925,000)
shares are issued and outstanding. All outstanding shares of BF are validly
issued, fully paid and non-assessable. There are no shares of BF's capital stock
held in its Treasury. There are no options, warrants, rights, stockholder
agreements or other instruments or agreements outstanding giving any person the
right to acquire any shares of capital stock of BF nor are there any commitments
to issue or execute any such option, warrants, rights, instruments or
agreements. The minute books and stock records of BF are complete and accurate
and all signatures included therein are the genuine signatures of the persons
whose signatures are required. True, correct and complete copies of BF's
Articles of Incorporation and By-Laws, and all amendments to both, shall have
been delivered to Universal before the Effective Time.
(b) Officers; Directors; Bank Accounts. Schedule "B" is a
correct and complete list of all directors and officers of BF, all bank accounts
and safe deposit boxes of BF and all persons authorized to sign checks drawn on
such accounts and to have access to such safe deposit boxes.
(c) Subsidiaries, Joint Ventures, and Investments. BF has
no subsidiary and does not own any capital stock, security, partnership interest
or other interest of any kind in any corporation, partnership, joint venture,
association or other entity except for the investments made (or jointly made
with Universal) set forth on Schedule "C".
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(d) Financial Statements. The Balance Sheets of BF as at
April 30, 2004 (the "Audited Balance Sheet") and July 31, 2004 (the "Warranted
Balance Sheet") and the related Statements of Income (Loss) for the year ended
as of the date of the Audited Balance Sheet and for the quarter annual period
ended as of the date of the Warranted Balance Sheet and all related Schedules
and Notes to the foregoing, copies of all of which have been filed by BF with
the Securities and Exchange Commission (the "SEC"), were prepared in accordance
with generally accepted accounting principles and practices consistently applied
throughout the periods reported upon and with past periods, and fairly and
accurately present the financial position of BF as at each such date, and the
results of the operations of BF for the respective periods reported upon.
(e) Real Estate. BF has no interest in any real estate.
(f) Personal Property. BF has good, valid and marketable
title to all personal property, tangible and intangible, reflected on the
Warranted Balance Sheet, and to all other personal property owned by it, free
and clear of all liens, mortgages, pledges, security interests, restrictions,
prior assignments, encumbrances and claims of every kind or character. No claim
has been asserted against BF involving any conflict or claim of conflict of its
corporate name, trade names, trademarks, or internet domain names, with the
tradenames, trademarks, internet domain names, or corporate names of others, and
no officer or director of BF has knowledge of any basis for any such claim of
conflict. BF is the sole and exclusive owner of its corporate name, trade names,
trademarks and internet domain names and has the sole and exclusive right to use
such trade names, trademarks and internet domain names; provided, however, that
Messrs. Xxxxxxx and Bovi have formed other corporations with names similar to
but slightly different from BF's name. No process used by BF or any product
manufactured or sold by BF infringes upon any patent, patent application,
trademark or trade name of any other party.
(g) Liabilities. BF has no liabilities, except as and to
the extent reflected in the Warranted Balance Sheet or in this Agreement or any
Schedule to this Agreement.
(h) Contracts, Leases, Agreements and Other Commitments.
BF is not a party to or bound by any written, oral or implied contract,
agreement, lease, power of attorney, guaranty, surety arrangement, or other
commitment, including but not limited to any contract or agreement for the
purchase or sale of merchandise or for the rendition of services.
(i) Labor, Employment Contracts, and Employee Benefit
Programs. BF is not a party to any collective bargaining agreement or employment
agreement, and BF is not a party to any pending or threatened labor dispute. BF
has complied with all applicable provisions of the Employee Retirement Income
Security Act or 1974, as amended, ("ERISA") and all applicable Federal, state
and local laws relating to the employment of labor, including but not limited to
the provisions thereof relative to wages, hours, collective bargaining,
contributions to pension or benefit plans, and payment of Social Security and
other payroll taxes, and BF is not liable for any arrears of wages or any taxes
or penalties for failure to comply with any of the foregoing. No "reportable
event" (as that term is defined in Section 4043 of ERISA or regulations
thereunder) has occurred and is continuing with respect to any employee benefit
plan
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of BF, and the present value of all benefits vested under all of BF's "employee
pension benefit plans" (as that term is defined in Section 3 of ERISA) do not
exceed the value of the assets of such plans allocable to such vested benefits.
None of such plans nor any trusts created thereunder have incurred any
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA since the effective date of Section 302. BF neither has currently nor
during the past five (5) years has had written or oral retirement, pension,
profit sharing, stock option, bonus, hospitalization, vacation or other employee
benefit plan, practice, agreement or understanding. The Company has no employees
other than its statutory officers listed on Schedule "B," and owes no
remuneration to any such officer.
(j) Litigation. BF is not a party to or threatened with
any suit, action, arbitration, administrative or other proceeding, or
governmental investigation; there is no judgment, decree, award or order
outstanding against BF; and BF is not contemplating the institution of any suit,
action, arbitration, administrative or other proceeding.
(k) Conflicting Interests. No director, officer or
employee of BF or any relative or any affiliate of any of the foregoing (i) has
any pecuniary interest in any supplier or customer of BF or in any other
business enterprise with which BF conducts business or with which BF is in
competition or (ii) is indebted to BF for money borrowed.
(l) Compliance with Law and Regulations. BF is in
compliance in all material respects with all requirements of law, Federal, state
and local, and all requirements of all governmental bodies or agencies having
jurisdiction over it, the conduct of its business, the use of its properties and
assets, and all premises occupied by it. BF has properly filed all reports and
other documents required to be filed with any Federal, state, local and foreign
government or subdivision or agency thereof. BF has not received any notice, not
heretofore complied with, from any Federal, state or municipal authority or any
insurance or inspection body that any of its properties, facilities, equipment,
or business procedures or practices, fails to comply with any applicable law,
ordinance, regulation, building or zoning law, or requirement of any public
authority or body. BF requires no licenses, permits, orders or approvals issued
by any governmental body or agency to conduct its current business.
(m) Agreement Not in Breach of Other Instruments
Affecting BF; Governmental Consent. The execution and delivery of this
Agreement, the consummation of the transactions provided for herein, and the
fulfillment of the terms hereof (i) will not result in the imposition of any
lien, security interest or encumbrance on any asset of BF or in the breach of
any of the terms and provisions of, or result in a termination or modification
of or constitute a default under, or conflict with, or cause any acceleration of
any obligation of BF under, or permit any other party to modify or terminate,
any agreement or other instrument by which BF is bound, any judgment, decree,
order, or award of any court, governmental body, or arbitrator, or any
applicable law, rule or regulation, and (ii) do not require the consent of any
governmental authority.
(n) Filing of Tax Returns. BF has filed all Federal,
state, local and foreign tax returns required to be filed in accordance with
provisions of law pertaining thereto and has paid all taxes and assessments
(including, without limitation of the foregoing, income, withholding, excise,
unemployment, Social Security, occupation, transfer, franchise, property,
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sales and use taxes, import duties or charges, and all penalties and interest in
respect thereof) required to have been paid to date.
(o) Actions Since July 31, 2004. Since July 31, 2004, BF:
(i) has not taken any action outside of the
ordinary and usual course of business other
than as expressly authorized hereby;
(ii) has not borrowed any money or become
contingently liable for any obligation or
liability of others;
(iii) has paid all of its debts and obligations as
they became due;
(iv) has not incurred any debt, liability or
obligation of any nature to any party except
for obligations relating to the purchase of
goods or the rendition of services in the
ordinary course of business;
(v) has not knowingly waived any right of
substantial value;
(vi) has used its best efforts to preserve its
business organization intact, to keep
available the services of its employees, and
to preserve its relationships with its
customers, suppliers and others with whom it
deals;
(vii) has not purchased or redeemed any shares of
its capital stock, or transferred,
distributed or paid, directly or indirectly,
any money or other property or assets to any
non-shareholder other than payment of
liabilities shown on the Warranted Balance
Sheet on or after the scheduled maturity or
due date thereof, and payments in the
ordinary course of business for goods and
services in arm's length transactions; and
(viii) has not issued any shares of capital stock
except for the issuance of One Hundred
Thousand (100,000) shares of Common Stock to
Nortia Capital Partners, Inc. ("Nortia"), in
exchange for cancellation of a $1,625.00
debt obligation owed by BF to Nortia.
(p) No Material Adverse Change. Since July 31, 2004,
there has not been and there is not threatened any material adverse change in
the financial condition, business, prospects or affairs of BF or any material
physical damage or loss to any of its properties or assets or to the premises
occupied by it (whether or not such damage or loss is covered by insurance).
(q) Ownership of Capital Stock of BF. A true and correct
list of the Shareholders of BF and their respective shareholdings are set forth
on Schedule "Q."
(r) Filings with the SEC. BF has made all filings with
the SEC that it has been required to make since June 1, 2004 under the
Securities Act of 1933 (the "1933 Act") and the Securities Exchange Act of 1934
(the "1934 Act") (collectively the "Public Reports") in accordance and within
the time requirements of the 1933 Act
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and the 1934 Act and the rules and regulations promulgated thereunder. Each of
the Public Reports has complied with the 1933 Act and the 1934 Act and the rules
and regulations of the SEC promulgated thereunder applicable to such Public
Reports in all material respects. None the Public Reports, as of its applicable
date, contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading.
(s) Proxy Matters. BF has complied with the proxy
requirements of Regulations 14A and 14C promulgated under the 1934 Act in
connection with this Agreement, including the obtaining of consents to the
Merger by the shareholders of BF and the sending of any applicable notices to
the shareholders of BF.
8. Representations and Warranties of Xxxxxxx and Xxxx. As
material inducement to Universal to enter into this Agreement and to close
hereunder, Bovi and Xxxxxxx, severally and not jointly, hereby make the
following representations and warranties to and with Universal:
(a) Agreement Not in Breach of Other Instruments
Affecting Xxxxxxx and Bovi. The execution and delivery of this Agreement, the
consummation of the transactions provided for herein, and the fulfillment of the
terms hereof by Xxxxxxx or Xxxx, will not result in the breach of any of the
terms and provisions of, or constitute a default under, or conflict with, any
agreement or other instrument by which Xxxxxxx or Bovi is bound, any judgment,
decree, order, or award of any court, governmental body, or arbitrator, or any
applicable law, rule or regulation;
(b) Valid and Binding Agreement. This Agreement
constitutes the valid and binding obligation of BF, Xxxxxxx (as to the
representation made by Xxxxxxx) and Bovi (as to the representation made by
Bovi), and is enforceable against each in accordance with its terms; and
(c) Power and Authority. BF has the corporate power,
legal right, and authority to enter into, execute, and deliver this Agreement
and to consummate the transactions contemplated herein.
9. Representations and Warranties of Universal. Universal represents and
warrants to BF, that as of the date hereof:
(a) Corporate Status; Outstanding Stock. Universal is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the power and authority to own its properties
and to carry on its business as it is now being conducted. Universal has an
authorized capital consisting of Twenty Million (20,000,000) shares of common
stock, par value one-tenth of a cent ($0.001) per share, of which Three Million
Eight Hundred Forty-Four Thousand Six Hundred (3,844,600) shares are issued and
outstanding. All outstanding shares of Universal are validly issued, fully paid
and non-assessable. There are no shares of Universal's capital stock held in its
Treasury. There are no options, warrants, rights, stockholder agreements or
other instruments or agreements outstanding giving any person the right to
acquire any shares of capital stock of Universal nor are there any
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commitments to issue or execute any such option, warrants, rights, instruments
or agreements; provided, however, Universal is currently offering shares of
common stock for purchase.
(b) Litigation. Universal is not a party to or threatened
with any suit, action, arbitration, administrative or other proceeding, or
governmental investigation; there is no judgment, decree, award or order
outstanding against Universal; and Universal is not contemplating the
institution of any suit, action, arbitration, administrative or other
proceeding.
(c) Conflicting Interests. No director, officer or
employee of Universal or any relative or any affiliate of any of the foregoing
(i) has any pecuniary interest in any supplier or customer of Universal or in
any other business enterprise with which Universal conducts business or with
which Universal is in competition or (ii) is indebted to Universal for money
borrowed.
(d) Compliance with Law and Regulations. Universal is in
compliance and has at all times complied in all material respects with all
requirements of law, Federal, state and local, and all requirements of all
governmental bodies or agencies having jurisdiction over it, the conduct of its
business, the use of its properties and assets, and all premises occupied by it.
Universal has properly filed all reports and other documents required to be
filed with any Federal, state, local and foreign government or subdivision or
agency thereof. Universal has not received any notice, not heretofore complied
with, from any Federal, state or municipal authority or any insurance or
inspection body that any of its properties, facilities, equipment, or business
procedures or practices, fails to comply with any applicable law, ordinance,
regulation, building or zoning law, or requirement of any public authority or
body. Universal requires no licenses, permits, orders or approvals issued by any
governmental body or agency to conduct its current business.
(e) Agreement Not in Breach of Other Instruments
Affecting Universal; Governmental Consent. The execution and delivery of this
Agreement, the consummation of the transactions provided for herein, and the
fulfillment of the terms hereof (i) will not result in the imposition of any
lien, security interest or encumbrance on any asset of Universal or in the
breach of any of the terms and provisions of, or result in a termination or
modification of or constitute a default under, or conflict with, or cause any
acceleration of any obligation of Universal under, or permit any other party to
modify or terminate, any agreement or other instrument by which Universal is
bound, any judgment, decree, order, or award of any court, governmental body, or
arbitrator, or any applicable law, rule or regulation, and (ii) do not require
the consent of any governmental authority.
(f) Power and Authority. Universal has the corporate
power, legal right and authority to enter into, execute and deliver this
Agreement and to consummate the transactions contemplated herein;
(g) Valid and Binding Agreement. This Agreement is a
valid and legally binding obligation of Universal, enforceable in accordance
with its terms.
10. Indemnification(a) BF, Xxxxxxx, and Xxxx (hereinafter
sometimes collectively referred to as the "Indemnitors") jointly and severally
shall and hereby agree to
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indemnify and to hold harmless Universal and its successors and assigns, jointly
and severally from, against and in respect of the amount of any and all
Deficiencies (as hereinafter defined) in excess of Twenty Thousand Dollars
($20,000).
(b) As used in this Agreement, "Deficiencies" means any
and all loss or damage resulting from:
(i) any misrepresentation, breach of warranty,
or any non-fulfillment of any warranty,
representation, covenant or agreement on any
part of BF, Xxxxxxx or Bovi contained in
this Agreement or in any other document
executed by BF in connection with the
transactions contemplated by this Agreement.
(This Agreement and each such other document
is referred to individually as a
"Transaction Document" and collectively, as
the "Transaction Documents");
(ii) any error contained in any statement, report
or certificate delivered to Universal by BF
in any Transaction Document;
(iii) any claim, debt, liability or obligation or
alleged claim, debt, liability or obligation
of BF to any party, incurred prior to the
date hereof or arising from any matter or
thing occurring prior to the date hereof,
including but not limited to claims made by
governmental authorities for taxes or
otherwise, except for liabilities shown on
the Warranted Balance Sheet (as hereinafter
defined) or incurred since the date of the
Warranted Balance Sheet in the ordinary
course of business in accordance with
Section 7(o) of this Agreement; and
(iv) any and all acts, suits, proceedings,
demands, assessments, judgments, reasonable
attorneys' fees, costs and expenses incident
to any of the foregoing or an investigation
of any of the foregoing.
(c) For the avoidance of doubt,
(i) With respect to Bovi, "Deficiencies" shall
not include and Bovi shall not be obligated
under this Section 10 with respect to any
claims or liability related to, arising
from, or growing out of any event which
occurred subsequent to April 30, 2004 (or
any representation, warranty, covenant or
agreement related thereto contained in this
Merger Agreement) or the offer or sale of
shares of capital stock of or by Universal
subsequent to June 1, 2004, except for the
representation set forth in Section 7(s) of
this Agreement; and
(ii) With respect to Xxxxxxx, "Deficiencies"
shall not include and Xxxxxxx shall not be
obligated under this Section 10 with respect
to any claims or liability related to,
arising from, or growing out of any event
which occurred subsequent to April 30, 2004
(or any representation, warranty, covenant
or agreement related thereto contained in
this Merger Agreement) of which he did not
have knowledge or the offer or sale of
shares of capital stock of or by Universal
subsequent to June 1, 2004 of which he did
not have knowledge, except for the
representation set forth in Section 7(s) of
this Agreement.
(d) In the event that any claim shall be asserted by any
party against, Universal or BF which, if sustained, would result in a
Deficiency, Universal, within a reasonable time after learning of such claim,
shall notify the Indemnitors of such claim, and shall extend to
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the Indemnitors a reasonable opportunity to defend against such claim, at the
Indemnitors' sole expense and through legal counsel reasonably acceptable to
Universal, provided that the Indemnitors proceed in good faith, expeditiously
and diligently. No determination shall be made pursuant to subparagraph (d)
below while such defense is still being made until the earlier of (i) the
resolution of such claim by the Indemnitors with the claimant, or (ii) the
termination of the defense by the Indemnitors against such claim or the failure
of the Indemnitors to prosecute such defense in good faith in an expeditious and
diligent manner. Universal shall be entitled to rely on the opinion of their
counsel as to the occurrence of either of such events. Universal shall, at its
option and expense, have the right to participate in any defense undertaken by
Indemnitors with legal counsel of their own selection. No settlement or
compromise of any claim which may result in a Deficiency may be made by
Indemnitors without the prior written consent of Universal unless (i) prior to
such settlement or compromise Indemnitors acknowledge in writing their
obligation to pay in full the amount of the settlement or compromise any and all
associated expenses and (ii) Universal is furnished with security reasonably
satisfactory to Universal that Indemnitors will in fact pay such amount and
expenses.
(e) In the event that Universal asserts the existence of
any Deficiency, Universal shall give written notice to the Indemnitors of the
nature and amount of the Deficiency asserted. If the Indemnitors, within a
period of thirty (30) days after the giving of such notice, shall not have given
written notice to Universal announcing their intent to contest such assertion
(such notice by the Indemnitors being hereinafter called the "contest notice"),
such assertion shall be deemed accepted and the amount of the Deficiency shall
be deemed established. In the event, however, that a contest notice is given to
Universal within such thirty-day period, then the contested assertion of a
Deficiency shall be settled by arbitration to be held in Philadelphia,
Pennsylvania in accordance with the rules of the American Arbitration
Association then obtaining. The determination of the arbitrator(s) shall be
delivered in writing to the Indemnitors and Universal and shall be final,
binding and conclusive upon all of the parties hereto, and the amount of the
Deficiency, if any, determined to exist, shall be deemed established.
(f) Universal and the Indemnitors may agree in writing,
at any time, as to the existence and amount of a Deficiency, and upon execution
of such agreement, such Deficiency shall be deemed established.
(g) The Indemnitors, jointly and severally, hereby agree
to pay the amount of established Deficiencies to Universal within five (5) days
after the establishment thereof in cash. Any amounts not paid by Indemnitors
when due under the preceding sentence shall bear interest from the due date
thereof until the date paid at a rate equal to the lesser of (i) ten percent
(10%) per annum or (ii) the highest legal rate permitted by applicable law.
11. Effect of Merger. At the Effective Time:
(a) BF shall be merged with and into Universal, and
Universal shall be the Surviving Corporation, and the separate existence of BF
shall cease;
(b) All property (real, personal and mixed) of BF, all
franchises of BF, and all debts due on whatever account to BF, shall be
transferred to and vested in the Surviving Corporation without further act or
deed.
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(c) All liabilities and obligations of BF shall be vested
in and shall be the liabilities and obligations of the Surviving Corporation.
Liens upon the property of BF shall not be impaired by the Merger and any claim
existing or action or proceeding pending by or against BF may be prosecuted to
judgment as if such Merger had not taken place or the Surviving Corporation may
be substituted in BF's place;
(d) All taxes, penalties, and other governmental accounts
claimed against BF but not settled, assessed or determined prior to the Merger
shall be settled, assessed or determined against the Surviving Corporation and
shall be a lien against the franchises and property, both real and personal, of
the Surviving Corporation to the extent required by law.
12. Principal Office. The location of the principal office of
the Surviving Corporation shall be 0000 Xxxxxx Xxxxx, Xxxxx 00, Xxxxxxxxxx,
Xxxxxxxx 00000.
13. Closing. The Closing of the transactions contemplated by
this Agreement shall take place at the offices of Xxxxxxx Xxxxx Xxxxxxx &
Ingersoll, LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX at 10:00 a.m. on March 31,
2005.
14. Survival. The representations and warranties made in this
Agreement shall survive until the first anniversary of the Closing date except
that all representations and warranties with respect to taxes, employee benefits
plans and employment matters shall survive until sixty days (60) after the
expiration of the applicable statute of limitations (including any extensions)
and the representation set forth in Section 7(s) shall survive until the second
anniversary of the Closing Date.
15. Securities Laws Compliance Procedures. BF, Xxxxxxx and
Xxxx severally and not jointly acknowledge and confirm that each has been
advised and understands as follows:
(a) the shares of common stock of the Surviving
Corporation to be issued in the Merger will be "restricted securities" within
the meaning of Rule 144 under the 1933 Act and have not (and will not have) been
registered under the 1933 Act and therefore, must be held indefinitely unless
they are subsequently registered under such statute or an exemption from
registration is available;
(b) The Surviving corporation will be under no obligation
to register such shares under the 1933 Act or to take any action which would
make available an exemption from such registration;
(c) There shall be endorsed on the certificates
evidencing the shares of common stock of the Surviving corporation to be issued
in the Merger a restrictive securities legend. Except under certain limited
circumstances, the above restrictions on the transfer of such shares will also
apply to any and all shares of capital stock or other securities issued or
otherwise acquired with respect to such shares including, without limitation,
shares and securities issued or acquired as a result of any stock dividend,
stock split or exchange or any distribution of shares or securities pursuant to
any corporate reorganization, reclassification or similar event.
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16. Covenants. Each party agrees to execute and deliver all
such instruments and documents and to take all such other action as any other
party may reasonably request from time to time, before or after the Effective
Time, without payment of further consideration and without delay, in order to
effectuate the transactions provided for herein. The parties shall cooperate
fully with one another and with their respective counsel in connection with any
steps required to be taken as part of their respective obligations under this
Agreement. BF shall not and hereby agrees not to issue any shares of capital
stock, purchase any shares of portfolio companies, enter into any contracts or
agreements, or otherwise engage in any business between the date of this
Agreement and the Closing Date.
17. Conditions to Obligations to Close.
(a) Conditions to Obligations of Universal. The
obligations of Universal set forth in this Merger Agreement (including, without
limitation, the obligation to consummate the Merger) are subject to satisfaction
of the following conditions:
(i) This Merger Agreement shall have been
adopted and approved and the Merger shall
have been approved by more than 50% of the
stockholders of Universal and by more than
50% of the shareholders of BF;
(ii) The representations and warranties set forth
in Sections 7 and 8 shall be true and
correct at and as of the Closing Date;
(iii) BF shall have performed and complied with
all of its covenants hereunder in all
respects;
(iv) No action, suit, or proceeding shall be
pending or threatened against BF before any
court or quasi-judicial or administrative
agency of any Federal, state, local, or
foreign jurisdiction or before any
arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling,
or charge would (A) prevent consummation of
any of the transactions contemplated by this
Merger Agreement, or (B) cause of any of the
transactions contemplated by this Merger
Agreement to be rescinded following
consummation;
(v) BF shall have delivered to Universal a
certificate of BF's Secretary attaching, and
certifying that each such attachment is
true, correct, complete and in effect on the
Closing Date: (A) resolutions of the Board
of Directors of BF with respect to all
transactions contemplated by this Agreement;
(B) resolutions or minutes of meeting of BF
shareholders adopting this Merger Agreement
and approving the Merger; and (C) a good
standing certificate for BF issued by the
Secretary of State of the State of Florida
dated not more than five days prior to the
Closing Date; and
(vi) No State or Federal securities regulator
(including the Securities and Exchange
Commission) shall have issued a stop order
with respect to the trading of any shares of
BF capital stock or shall have commenced any
inquiry with respect to any filing made by
BF with any such regulator or shall have
commenced any investigation with respect to
BF.
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Universal may waive any condition specified in this Section 17(a) if it executes
a writing so stating at or prior to Closing.
(b) Conditions to Obligations of BF. The obligations of
BF set forth in this Merger Agreement (including without limitation, the
obligations to consummate the Merger) are subject to satisfaction of the
following:
(i) This Merger Agreement shall have been
adopted and approved and the Merger shall
have been approved by more than 50% of the
stockholders of Universal and by more than
50% of the shareholders of BF;
(ii) The representations and warranties set forth
in Section 9 shall be true and correct at
and as of the Closing Date;
(iii) Universal shall have performed and complied
with all of its covenants hereunder in all
respects;
(iv) No action, suit, or proceeding shall be
pending or threatened against Universal
before any court or quasi-judicial or
administrative agency of any Federal, state,
local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling,
or charge would (A) prevent consummation of
any of the transactions contemplated by this
Merger Agreement or (B) cause any of the
transactions contemplated by this Agreement
to be rescinded following consummation;
(v) Universal shall have delivered to BF a
certificate of Universal's Secretary
attaching, and certifying that each such
attachment is true, correct, complete and in
effect on the Closing Date: (A) resolutions
of the Board of Directors of Universal with
respect to all transactions contemplated by
this Merger Agreement; (B) resolutions or
minutes of meeting of Universal stockholders
adopting this Merger Agreement and approving
the Merger; and (C) a good standing
certificate for Universal issued by the
Secretary of State of the State of Delaware
dated not more than five days prior to the
Closing Date;
BF may waive any condition specified in this Section 17(b) if it executes a
writing so stating at or prior to the Closing.
18. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay
on the part of either party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
(b) Controlling Law. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement
(including, without limitation, provisions
12
concerning limitations of actions), shall be governed by and construed in
accordance with the laws of the State of Delaware (other than to the extent, but
only to the extent, required to satisfy the merger requirements of Florida law,
Florida law), notwithstanding any conflict-of-laws doctrines of any jurisdiction
to the contrary, and without the aid of any canon, custom or rule of law
requiring construction against the draftsman.
(c) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
delivered (personally, by courier service such FedEx or by other messenger)
against receipt or upon actual receipt of registered or certified mail, postage
prepaid, return receipt requested, addressed as set forth below:
If to Universal:
0000 Xxxxxx Xxxxx
Xxxxx 00
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
If to Bovi:
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
If to BF or Xxxxxxx:
0000 Xxxx Xxxx.
Xxx Xxxxxxxxx, XX 00000-0000
In addition, notice by mail shall be sent by a reputable international courier
(such as FedEx) if posted outside of the continental United States. Any party
may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this
subparagraph for the giving of notice.
(d) Schedules. All Schedules attached hereto are hereby
incorporated by reference into, and made a part of, this Agreement.
(e) Binding Nature of Agreement; No Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors and assigns,
except that no party may assign or transfer its rights nor delegate its
obligations under this Agreement without the prior written consent of the other
parties hereto.
(f) Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof,
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individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
(g) Provisions Separable. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other or others of them may be invalid or unenforceable
in whole or in part.
(h) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
(i) Paragraph Headings. The Paragraph and subparagraph
headings in this Agreement have been inserted for convenience of reference only;
they form no part of this Agreement and shall not affect its interpretation.
(j) Gender, Etc. Words used herein, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context indicates is appropriate.
(k) Number of Days. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and Holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or Holiday, then the final day shall be
deemed to be the next day which is not a Saturday, Sunday or Holiday. For
purposes of this Agreement, the term "Holiday" shall mean a day, other than a
Saturday or Sunday, on which national banks with branches in the Commonwealth of
Pennsylvania are or may elect to be closed.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
UNIVERSAL CAPITAL
MANAGEMENT, INC.
Attest:
By: /s/ Xxxxxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxx -----------------------------
------------------------- Xxxxxxx X. Xxxxx, President
BF ACQUISITION GROUP IV, INC.
Attest:
/s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------- -----------------------------
Xxxxxxx X. Xxxxxxx, President
Witness:
/s/ Xxxxxxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------- -------------------------(SEAL)
Xxxxxxx X. Xxxxxxx
Witness:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxx
------------------------- -------------------------(SEAL)
Xxxxx X. Xxxx
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AGREEMENT AND PLAN OF MERGER
List of Schedules
Schedule B - List of Officers, Directors, Bank Accounts
Schedule C - List of Investments
Schedule H - List of Corporation Agreements
Schedule Q - List of Shareholders and Shareholdings
