[Exhibit 2.1]
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made this 10th day
of November, 2004 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").
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
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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
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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.
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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
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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
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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, 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
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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
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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
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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
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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
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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".
(d) Financial Statements. The Balance Sheets of BF as at
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April 30, 2004 (the "Audited Balance Sheet") and July 31, 2004 (the
"Warranted Balance Sheet") and the related Statements of Income
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(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.
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(f) Personal Property. BF has good, valid and marketable
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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 Xxxx
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
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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.
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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
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Programs. BF is not a party to any collective bargaining agreement
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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 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
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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
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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
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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
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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
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BF; Governmental Consent. The execution and delivery of this
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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,
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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, sales and use taxes,
import duties or charges, and all penalties and interest in
respect thereof) required to have been paid to date.
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(o) Actions Since July 31, 2004. Since July 31, 2004, BF:
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(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
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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
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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
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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 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
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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.
8. Representations and Warranties of Xxxxxxx and Bovi.
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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
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Xxxxxxx and Bovi. The execution and delivery of this Agreement,
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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
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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
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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
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represents and warrants to BF, that as of the date hereof:
(a) Corporate Status; Outstanding Stock. Universal is a
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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 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
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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
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employee of Universal or any relative or any affiliate of any of
the foregoing (i) has any pecuniary interest in any supplier or
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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
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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
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Universal; Governmental Consent. The execution and delivery of
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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,
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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.
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(a) BF, Xxxxxxx, and Xxxx (hereinafter sometimes collectively
referred to as the "Indemnitors") jointly and severally shall and
hereby agree to 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
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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; 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.
(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 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
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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:
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(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.
(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
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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
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office of the Surviving Corporation shall be 0000 Xxxxxx Xxxxx,
Xxxxx 00, Xxxxxxxxxx, Xxxxxxxx 00000.
13. Closing. The Closing of the transactions contemplated
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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 the later to occur of November 30, 2004, or on such date
when Universal shall have not fewer than Three Hundred (300)
stockholders of record. Either party can terminate this
Agreement if Closing shall not have occurred on or before March
31, 2005.
14. Survival. The representations and warranties made in
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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.)
15. Securities Laws Compliance Procedures. BF, Xxxxxxx and
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Bovi 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.
16. Covenants. Each party agrees to execute and deliver all
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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.
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17. Conditions to Obligations to Close.
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(a) Conditions to Obligations of Universal. The obligations
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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.
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;
11
(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 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:
12
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, 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
13
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.
14
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
UNIVERSAL CAPITAL
MANAGEMENT, INC.
Attest: ________________________ By:_____________________________
President
BF ACQUISITION GROUP IV, INC.
Attest: ________________________ By:_____________________________
President
Witness:
______________________________ _________________________________(SEAL)
Xxxxxxx X. Xxxxxxx
Witness:
______________________________ _________________________________(SEAL)
Xxxxx X. Xxxx
15
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
Schedule "B"
List of Officers, Directors, Bank Accounts
and Safe Deposit Boxes of BF
Pursuant to Section 7 (b)
-------------------------
Officers
--------
President, Secretary, Treasurer - Xxxxxxx X. Xxxxxxx
Directors
---------
Xxxxxxx X. Xxxxxxx
Bank Accounts
Wachovia Bank checking account number ________ and
custodial account number ________
Safe Deposit Boxes
------------------
None
Schedule "C"
List of Investments
Pursuant to Section 7(c)
------------------------
Name Number Type Approximate
of of of Percentage of
Company Shares Owned Shares Class Owned Purchase Price
-------------------------- ---------------- ------------ --------------- ----------------------
GelStat Corporation 150,000 Common Stock 1.7% $250,000
PSI-TEC Corporation 187,500 Common Stock 0.9% $30,000
PSI-TEC Corporation 200,000 Common Stock 1.0% Services rendered
PSI-TEC Corporation 200,000 Common Stock 1.0% Contributed by Xxxxxxx
Xxxxx and Xxxxxxx Xxxx
ImprintsPlus, Inc. 200,000 Common Stock 2.0% Services Rendered
ImprintsPlus, Inc. 200,000 Common Stock 2.0% Contributed by Xxxxxxx
Xxxxx and Xxxxxxx Xxxx
Schedule "H"
List of Corporation Agreements
Pursuant to Section 7(h)
------------------------
None
Schedule "Q"
List of Shareholders and Shareholdings
Pursuant to Section 7(q)
------------------------
Name Number of Shares of BF Common Stock
------------------------------- -----------------------------------
Xxxx Xxxxxxxx 10,000
Xxxxxxx Xxxxx 10,000
Xxxx Xxxxx 10,000
Xxxxxxx Xxxxxxx 10,000
Xxxxxxx X. Xxxxx 10,000
Xxxx Xxxxxxxxx 10,000
Xxxx X. & Xxxxxxx Xxxxxx Trust 10,000
Xxxxxxx Xxxxx 35,000
Xxxxx Xxxxxx 10,000
Xxxx Xxxx 10,000
Xxxxx X. Xxxx 400,000
Xxxxxxx X. Xxxxxxx 300,000
Nortia Capital Partners, Inc. 100,000
----------
Total 925,000
==========
