AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement") is made and entered into
as of October 27, 2006, by and among Amish Pasta Company, Inc., a Nevada
corporation, with its principal office at 0000 Xxxxx Xxxxx 00, Xxxxxxxxxxx, Xxxx
00000 ("Amish Pasta"), FII International, Inc., a Nevada corporation, with its
principal office at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx X0X 0X0 ("FII") and APC Acquisition Corp., a newly-formed wholly-owned
subsidiary of FII ("Acquisition Sub").
A. FII and Amish Pasta intend to effect a reverse triangular merger (the
"Merger"), pursuant to which Acquisition Sub will merge with and into Amish
Pasta and Amish Pasta will survive. Immediately thereafter, Acquisition Sub will
change its name to Amish Naturals, Inc. and merge with and into FII, and FII
will survive with the new name Amish Naturals, Inc.
B. Immediately prior to the Merger, FII shall effect a 2.8-for-one split
(the "Stock Split") of its authorized but unissued and of its issued and
outstanding common stock, par value $.001 per share.
C. Simultaneous with the closing of the Merger, FII and Xxxxxxxx
Xxxxx-Xxxxxxxx (the "Majority Stockholder") will sell to FII all shares of FII
common stock then held by her pursuant to the repurchase agreement of even date
herewith to which FII and she are parties (the "Repurchase Agreement").
D. Simultaneous with the closing of the Merger, FII and certain investors
(the "Investors") who are parties to the purchase agreement of even date
herewith (the "Purchase Agreement") will close the $2,610,000 private placement
transaction contemplated by the Purchase Agreement.
E. For federal income tax purposes, the parties intend that the
transactions contemplated by this Agreement will qualify as a tax-free
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated thereunder (the
"Tax Code").
In consideration of the foregoing and the representations, warranties and
mutual covenants herein made, the parties hereby agree to the foregoing and as
follows:
Section 1. Definitions. Capitalized terms not otherwise defined herein
have the meanings set forth in the attached Schedule 1.
Section 2. Merger.
(a) Effecting the Merger. Upon the terms and subject to the conditions
contained in this Agreement, at the Effective Time, Acquisition Sub shall be
merged with and into Amish Pasta, and the separate corporate existence of
Acquisition Sub shall thereupon cease. Immediately thereafter, Acquisition Sub's
name will be changed to Amish Naturals, Inc., FII will merge Acquisition Sub
into itself pursuant to a plan of merger adopted by the board of directors of
FII and articles of merger filed with the Secretary of State of the State of
Nevada in accordance with Section 92A.180 of the Nevada Revised Statutes (2005),
and the separate corporate existence of Acquisition Sub will cease, FII will
continue as the surviving corporation, and the name of FII will be changed to
Amish Naturals, Inc.
(b) Conversion of Shares.
(i) Each one (1) share of the shares of common stock of Amish Pasta
issued and outstanding on the Closing Date ("Shares") will, by virtue of the
Merger and without any action on the part of Amish Pasta, FII, Acquisition Sub
or the holders of the Shares, be converted into and will become 2.4 validly
issued, fully paid and nonassessable shares of common stock of FII ("Share
Ratio"), on a post-stock split basis, such that holders of the Shares as of the
Closing Date will hold a total of 25,000,000 shares of FII on a post-stock split
basis following the conversion. No fractional shares will be issued, and any
right to receive a fractional share will be rounded to the nearest whole share.
(ii) At the Effective Time, the Shares will be deemed canceled and
retired and will cease to exist, and each holder of a certificate for Shares
will cease to have any rights with respect thereto; provided, however, that,
following the Closing Date, upon surrender of an original stock certificate
representing Shares, FII will deliver a stock certificate for shares of common
stock of FII to which such person is entitled pursuant to the Share Ratio,
bearing any necessary or appropriate restrictive legend.
(iii) If any certificate evidencing Shares shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen or destroyed and, if required by
FII, the posting of an indemnity bond, in such reasonable amount as the transfer
agent may direct, as collateral security against any claim that may be made with
respect to the certificate, FII will issue in exchange for the lost, stolen or
destroyed certificate the applicable number of shares of FII common stock.
Section 3. Closing Date. On the terms and subject to the conditions of
this Agreement, the closing of the Merger (the "Closing") shall take place at
the offices of Xxxxx Xxxx LLP, 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, at
10:00 a.m., local time, on the date of this Agreement or such other time, date
or place as FII and Amish Pasta may otherwise agree (the "Closing Date").
Section 4. New Directors and Officers. Effective ten days following the
Closing, the Board of Directors of FII will appoint four additional individuals
designated by Amish Pasta to fill the vacancies on the Board. On the Closing
Date or as soon thereafter as practicable, FII shall file with the Securities
and Exchange Commission and transmit to the stockholders of FII the information
required by Exchange Act Rule 14f-1 with regard hereto. Effective as of the
Closing, the current officers of FII shall be replaced with individuals
designated as officers by Amish Pasta.
Section 5. Amish Pasta's Representations and Warranties. Amish Pasta
represents and warrants to FII that the statements contained in this Section are
true and correct as of the Closing Date, and do not contain any facts, or omit
any facts, that render the statements therein to be misleading, except (i) where
any variation would not be reasonably likely to have an Adverse Effect, and (ii)
as set forth herein and in the disclosure schedule delivered by Amish Pasta to
FII (the "Amish Pasta Schedule"), arranged in sections corresponding to the
paragraphs in this Section and the disclosure in any section or paragraph will
qualify other paragraphs in this Section to the extent that it is reasonably
apparent from a reading of the disclosure that it also qualifies or applies to
such other paragraphs.
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(a) Organization. Amish Pasta is a corporation validly existing and in
good standing under the laws of the State of Nevada and has all requisite power
and authority and possesses all necessary governmental approvals necessary to
own, lease and operate its properties, to carry on its business as now being
conducted, to execute and deliver this Agreement and the agreements contemplated
herein, and to consummate the transactions contemplated hereby and thereby.
Amish Pasta is duly qualified to do business and is in good standing in all
jurisdictions in which its ownership of property or the character of its
business requires such qualification, except where the failure to be so
qualified would not reasonably be expected to have an Adverse Effect. Certified
copies of the Articles of Incorporation of Amish Pasta, as amended to date, have
been made available to FII, are complete and correct, and no amendments have
been made thereto or have been authorized since the date thereof. Amish Pasta is
not in violation of any of the provisions of its Articles of Incorporation or
Bylaws.
(b) Capitalization.
(i) Amish Pasta's authorized capital stock consists solely of
80,000,000 shares of common stock, par value $0.0001 and 20,000,000 shares of
Series A Preferred Stock, par value $0.0001.
(ii) There are 10,416,666.66 shares of common stock issued and
outstanding, no shares of Amish Pasta Series A Preferred Stock issued and
outstanding, and no shares held in the treasury of Amish Pasta. All of the
issued and outstanding shares of Amish Pasta common stock were duly and validly
issued and fully paid, are nonassessable and free of preemptive rights, and were
issued in compliance with all applicable state and federal securities laws.
(iii) Other than as set forth on the Amish Pasta Schedule, there are
no outstanding (A) options, warrants, or other rights to purchase from Amish
Pasta any capital stock of Amish Pasta; (B) debt securities or instruments
convertible into or exchangeable for shares of such stock; or (C) commitments of
any kind for the issuance of additional shares of capital stock or options,
warrants or other securities of Amish Pasta.
(c) No Subsidiaries. Amish Pasta does not own any capital stock or other
equity interest in any corporation, partnership, joint venture or other entity.
(d) Authorization. Amish Pasta has all requisite power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Amish Pasta and the consummation by Amish Pasta of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action by Amish Pasta and no other corporate proceedings on
the part of Amish Pasta and no stockholder vote or consent is necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Amish Pasta.
This Agreement and all other agreements and obligations entered into and
undertaken in connection with the transactions contemplated hereby to which
Amish Pasta is a party constitute the valid and legally binding obligations of
Amish Pasta, enforceable against Amish Pasta in accordance with their respective
terms, except as may be limited by principles of equity, applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or other similar
laws relating to or affecting the rights and remedies of creditors generally.
The execution, delivery and performance by Amish Pasta of this Agreement and the
agreements provided for herein, and the consummation by Amish Pasta of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, violate the provisions of the
Articles of Incorporation or Bylaws of Amish Pasta, or to Amish Pasta's
Knowledge (i) violate the provisions of any law, rule or regulation applicable
to Amish Pasta, (ii) violate any judgment, decree, order or award of any court,
governmental body or arbitrator; or (iii) conflict with or result in the breach
or termination of any term or provision of, or constitute a default under, or
cause any acceleration under, or cause the creation of any lien, charge or
encumbrance upon the properties or assets of Amish Pasta pursuant to, any
indenture, mortgage, deed of trust or other instrument or agreement to which
Amish Pasta is a party or by which Amish Pasta or any of its properties is or
may be bound.
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(e) No Conflict. The execution and delivery of this Agreement by Amish
Pasta does not require any consent or approval under, result in any breach of,
any loss of any benefit under or constitute a change of control or default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any right of termination, vesting, amendment,
acceleration or cancellation of, or result in the creation of any lien or
encumbrance on any property or asset of Amish Pasta pursuant to any material
agreement of Amish Pasta or other instrument or obligation of Amish Pasta.
(f) Litigation. There is no action, suit, legal or administrative
proceeding or investigation pending or, to Amish Pasta's Knowledge, threatened
against or involving Amish Pasta (either as a plaintiff or defendant) before any
court or governmental agency, authority, body or arbitrator. There is not in
existence on the date hereof any order, judgment or decree of any court,
tribunal or agency to Amish Pasta's Knowledge enjoining or requiring Amish Pasta
to take any action of any kind with respect to its business, assets or
properties.
(g) Insurance. The Amish Pasta Schedule sets forth a listing of all
current Amish Pasta insurance policies. All current insurance policies are in
full force and effect, are in amounts of a nature that are adequate and
customary for Amish Pasta's business, and to Amish Pasta's Knowledge are
sufficient for compliance with all legal requirements and agreements to which it
is a party or by which it is bound. All premiums due on current policies or
renewals have been paid, and there is no material default under any of the
policies.
(h) Personal Property. Amish Pasta has good and marketable title to all of
its tangible personal property free and clear of all liens, leases,
encumbrances, claims under bailment and storage agreements, equities,
conditional sales contracts, security interests, charges and restrictions,
except for liens, if any, for personal property taxes not due. Such property is
used by Amish Pasta in the ordinary course of its business and is sufficient for
continued conduct of Amish Pasta's business after the Closing Date in
substantially the same manner as conducted prior to the Closing Date. Such
property is in good operating condition and repair, normal wear and tear
excepted, and normal maintenance has been performed.
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(i) Intangible Property. Amish Pasta is the sole and exclusive owner of
all right, title and interest in and to all material items of intangible
property (including formula and process know-how) necessary for the operation of
all material aspects of Amish Pasta's business as it is currently conducted free
and clear of all liens, security interests, charges, encumbrances, equities or
other adverse claims. Amish Pasta has the right and authority to use, and to
continue to use after the Closing Date, such property in connection with the
conduct of its business in the manner presently conducted, and to its Knowledge
such use or continuing use does not and will not materially infringe upon or
violate any rights of any other Person.
(j) Real Property. Amish Pasta is a party to a Lease/Option Agreement
regarding a parcel of improved real property located in Ohio. Except as set
forth in the preceding sentence, Amish Pasta does not have any interests in any
parcel of real property
(k) Tax Matters. Within the times and in the manner prescribed by law,
Amish Pasta has filed all federal, state and local tax returns and all tax
returns for other governing bodies having jurisdiction to levy taxes upon it
which are required to be filed. Amish Pasta has paid all taxes, interest,
penalties, assessments and deficiencies which have become due, including without
limitation income, franchise, real estate, and sales and withholding taxes. No
examinations of the federal, state or local tax returns of Amish Pasta are
currently in progress nor threatened and no deficiencies have been asserted or
to its Knowledge assessed against Amish Pasta as a result of any audit by the
Internal Revenue Service or any state or local taxing authority and no such
deficiency has been proposed or threatened.
(l) Books and Records. The general ledger and books of account of Amish
Pasta, all minute books of Amish Pasta, all federal, state and local income,
franchise, property and other tax returns filed by Amish Pasta, all of which
have been made available to FII, are in all material respects complete and
correct and have been maintained in accordance with good business practice and
in accordance with all applicable procedures required by laws and regulations.
(m) Contracts and Commitments. The Amish Pasta Schedule lists all material
contracts and agreements to which Amish Pasta is a party, whether written or
oral, other than those between Amish Pasta and FII. Each such contract is a
valid and binding agreement of Amish Pasta, enforceable against Amish Pasta in
accordance with its terms, is in full force and effect and represents the
material terms of the agreement between the respective parties. Amish Pasta has
materially complied with all obligations required pursuant to such contracts to
have been performed by Amish Pasta on its part and neither Amish Pasta nor, to
its knowledge, any other party to such contract is in breach of or default in
any material respect under any such contract.
(n) Compliance with Laws. Amish Pasta has all requisite licenses, permits
and certificates, including environmental, health and safety permits, from
federal, state and local authorities necessary to conduct its business as
currently conducted and own and operate its assets, except where the failure to
have such permits would not reasonably be expected to have an Adverse Effect.
Amish Pasta is not in violation of any federal, state or local law, regulation
or ordinance (including, without limitation, laws, regulations or ordinances
relating to building, zoning, environmental, disposal of Hazardous Waste, land
use or similar matters) relating to its business or its properties.
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t 6 0 (o) Employee Benefit Plans. The Amish Pasta Schedule lists all
employee benefit plans as defined in ERISA Section 3(3), and all bonus, stock
option, stock purchase, incentive, deferred compensation, supplemental
retirement, severance and other similar employee benefit plans, and all material
unexpired severance agreements with any current or former employee of Amish
Pasta. With respect to such plans, individually and in the aggregate, no event
has occurred and, to its Knowledge, there exists no condition or set of
circumstances in connection with which Amish Pasta could be subject to any
liability that is reasonably likely to have an Adverse Effect under ERISA, the
Tax Code or any other applicable law.
(p) Indebtedness to and from Affiliates. Amish Pasta is not indebted,
directly or to its Knowledge indirectly, to any officer, director or 10%
stockholder of Amish Pasta in any amount other than for salaries for services
rendered or reimbursable business expenses, and no such Person is indebted to
Amish Pasta except for advances made to employees of Amish Pasta in the ordinary
course of business to meet reimbursable business expenses.
(q) Banking Facilities. The Amish Pasta Schedule sets forth a true,
correct, and complete list of: (i) each bank, savings and loan or similar
financial institution in which Amish Pasta has an account or safety deposit box
and the numbers of the accounts or safety deposit boxes maintained by Amish
Pasta thereat; and (ii) the names of all signatories authorized to draw on each
such account or to have access to any such safety deposit box facility.
(r) Regulatory Approvals. All consents, approvals, authorizations or other
requirements prescribed by any law, rule or regulation that must be obtained or
satisfied by Amish Pasta and that are necessary for the execution and delivery
by Amish Pasta of this Agreement or any documents to be executed and delivered
by Amish Pasta in connection therewith have been, or prior to the Closing Date
will be, obtained and satisfied.
(s) No Brokers. Except as set forth on the Amish Pasta Schedule, no broker
or finder has acted for Amish Pasta in connection with this Agreement or the
transactions contemplated hereby, and no broker or finder is entitled to any
brokerage or finder's fee or other commissions in respect of such transactions
based upon agreements, arrangements or understandings made by or on behalf of
Amish Pasta.
(t) Disclosure. The information concerning Amish Pasta set forth in this
Agreement, the exhibits and schedules hereto and any document, statement or
certificate furnished or to be furnished in connection herewith, does not and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated herein or therein or necessary to make the
statements and facts contained herein or therein, in light of the circumstances
in which they are made, not false and misleading.
(u) Tax Treatment. Neither Amish Pasta nor, to the Knowledge of Amish
Pasta, any of its Affiliates has taken or agreed to take action that would
prevent the Merger from constituting a reorganization qualifying under the
provisions of Section 368 of the Tax Code.
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Section 6. FII's Representations and Warranties. FII represents and
warrants to Amish Pasta and the surviving corporation that the statements
contained in this Section are true and correct as of the Closing Date, and do
not contain any facts, or omit any facts, that render the statements therein to
be misleading, except (i) where any variation would not be reasonably likely to
have an Adverse Effect, and (ii) as set forth herein and in the disclosure
schedule delivered by FII to Amish Pasta (the "FII Schedule"), arranged in
sections corresponding to the paragraphs in this Section and the disclosure in
any section or paragraph will qualify other paragraphs in this Section to the
extent that it is reasonably apparent from a reading of the disclosure that it
also qualifies or applies to such other paragraphs.
(a) Organization. FII is a corporation validly existing and in good
standing under the laws of the State of Nevada and has all requisite power and
authority and possesses all necessary governmental approvals necessary to own,
lease and operate its properties, to carry on its business as now being
conducted, to execute and deliver this Agreement and the agreements contemplated
herein, and to consummate the transactions contemplated hereby and thereby. FII
is duly qualified to do business and is in good standing in all jurisdictions in
which its ownership of property or the character of its business requires such
qualification, except where the failure to be so qualified would not reasonably
be expected to have an Adverse Effect. Certified copies of the Articles of
Incorporation and Bylaws, as amended to date, have been made available to Amish
Pasta, are complete and correct, and no amendments have been made thereto or
have been authorized since the date thereof. FII is not in violation of any of
the provisions of its Articles of Incorporation or Bylaws.
(b) Capitalization.
(i) FII's authorized capital stock consists solely of 200,000,000
shares of FII common shares, $0.001 par value, not taking into account the
increase that will occur as a result of the Stock Split.
(ii) There are 9,000,000 FII common shares issued and outstanding
(which number excludes the actions contemplated by the Repurchase Agreement and
Stock Split) and no FII common shares are held in the treasury of FII. All of
the issued and outstanding FII common shares were duly and validly issued and
fully paid, are nonassessable and free of preemptive rights, and were issued in
compliance with all applicable state and federal securities laws.
(iii) Other than as set forth on the FII Schedule, there are no
outstanding (A) options, warrants, or other rights to purchase from FII any
capital stock of FII; (B) debt securities or instruments convertible into or
exchangeable for shares of such stock; or (C) commitments of any kind for the
issuance of additional shares of capital stock or options, warrants or other
securities of FII.
(iv) FII owns all of the outstanding capital stock of APC
Acquisition Corp., free and clear of all liens or other encumbrances.
(c) No Subsidiaries. FII does not own any capital stock or other equity
interest in any corporation, partnership, joint venture or other entity.
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(d) Authorization. FII has all requisite power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by FII and the consummation by FII of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action by FII and no other corporate proceedings on the part of FII
and no stockholder vote or consent is necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by FII. This Agreement and all other
agreements and obligations entered into and undertaken in connection with the
transactions contemplated hereby to which FII is a party constitute the valid
and legally binding obligations of FII, enforceable against FII in accordance
with its terms, except as may be limited by principles of equity, applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws relating to or affecting the rights and remedies of creditors
generally. The execution, delivery and performance by FII of this Agreement and
the agreements provided for herein, and the consummation by FII of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, violate the provisions of the
Articles of Incorporation or Bylaws of FII, or to FII's Knowledge (i) violate
the provisions of any law, rule or regulation applicable to FII, (ii) violate
any judgment, decree, order or award of any court, governmental body or
arbitrator; or (iii) conflict with or result in the breach or termination of any
term or provision of, or constitute a default under, or cause any acceleration
under, or cause the creation of any lien, charge or encumbrance upon the
properties or assets of FII pursuant to, any indenture, mortgage, deed of trust
or other instrument or agreement to which FII is a party or by which FII or any
of its properties is or may be bound.
(e) No Conflict. The execution and delivery of this Agreement by FII does
not require any consent or approval under, result in any breach of, any loss of
any benefit under or constitute a change of control or default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any right of termination, vesting, amendment, acceleration or
cancellation of, or result in the creation of any lien or encumbrance on any
property or asset of FII pursuant to any material agreement of FII or other
instrument or obligation of FII.
(f) Absence of Liabilities. FII does not have any liability or obligation,
secured or unsecured, whether accrued, absolute, contingent, unasserted or
otherwise, which exceeds $1,000.
(g) Litigation. There is no action, suit, legal or administrative
proceeding or investigation pending or, to FII's Knowledge, threatened against
or involving FII (either as a plaintiff or defendant) before any court or
governmental agency, authority, body or arbitrator. There is not in existence on
the date hereof any order, judgment or decree of any court, tribunal or agency
to FII's Knowledge enjoining or requiring FII to take any action of any kind
with respect to its business, assets or properties.
(h) Tax Matters. Within the times and in the manner prescribed by law, FII
has filed all federal, state and local tax returns and all tax returns for other
governing bodies having jurisdiction to levy taxes upon it which are required to
be filed. FII has paid all taxes, interest, penalties, assessments and
deficiencies which have become due, including without limitation income,
franchise, real estate, and sales and withholding taxes. No examinations of the
federal, state or local tax returns of FII are currently in progress nor
threatened and no deficiencies have been asserted or to its Knowledge assessed
against FII as a result of any audit by the Internal Revenue Service or any
state or local taxing authority and no such deficiency has been proposed or
threatened.
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(i) Books and Records. The general ledger and books of account of FII, all
minute books of FII, all federal, state and local income, franchise, property
and other tax returns filed by FII, all reports and filings with the SEC by FII,
all of which have been made available to Amish Pasta, are in all material
respects complete and correct and have been maintained in accordance with good
business practice and in accordance with all applicable procedures required by
laws and regulations.
(j) Contracts and Commitments. There are no material contracts to which
FII is a party other than those set forth as exhibits to its filings with the
SEC.
(k) Compliance with Laws. FII has all requisite licenses, permits and
certificates, including environmental, health and safety permits, from federal,
state and local authorities necessary to conduct its business as currently
conducted and own and operate its assets, except where the failure to have such
permits would not reasonably be expected to have an Adverse Effect. FII is not
in violation of any federal, state or local law, regulation or ordinance
(including, without limitation, laws, regulations or ordinances relating to
building, zoning, environmental, disposal of Hazardous Waste, land use or
similar matters) relating to its business or its properties.
(l) Employee Benefit Plans. Except as disclosed in its filings with the
SEC, FII has no (A) employee benefit plans as defined in ERISA Section 3(3), (B)
bonus, stock option, stock purchase, incentive, deferred compensation,
supplemental retirement, severance or other similar employee benefit plans, or
(C) material unexpired severance agreements with any current or former employee
of FII. With respect to such plans, individually and in the aggregate, no event
has occurred and, to its Knowledge, there exists no condition or set of
circumstances in connection with which FII could be subject to any liability
that is reasonably likely to have an Adverse Effect under ERISA, the Tax Code or
any other applicable law.
(m) Indebtedness to and from Affiliates. FII is not indebted, directly or
to its Knowledge indirectly, to any officer, director or 10% stockholder of FII
in any amount other than for salaries for services rendered or reimbursable
business expenses, and no such Person is indebted to FII except for advances
made to employees of FII in the ordinary course of business to meet reimbursable
business expenses.
(n) Banking Facilities. The FII Schedule sets forth a true, correct, and
complete list of: (i) each bank, savings and loan or similar financial
institution in which FII has an account or safety deposit box and the numbers of
the accounts or safety deposit boxes maintained by FII thereat; and (ii) the
names of all signatories authorized to draw on each such account or to have
access to any such safety deposit box facility.
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(o) Regulatory Approvals. All consents, approvals, authorizations or other
requirements prescribed by any law, rule or regulation that must be obtained or
satisfied by FII and that are necessary for the execution and delivery by FII of
this Agreement or any documents to be executed and delivered by FII in
connection therewith have been obtained and satisfied.
(p) No Brokers. Except as set forth on the FII Schedule, no broker or
finder has acted for FII in connection with this Agreement or the transactions
contemplated hereby, and no broker or finder is entitled to any brokerage or
finder's fee or other commissions in respect of such transactions based upon
agreements, arrangements or understandings made by or on behalf of FII.
(q) Disclosure. The information concerning FII set forth in its reports
and filings with the SEC, this Agreement, the exhibits and schedules hereto and
any document, statement or certificate furnished or to be furnished in
connection herewith, does not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated herein or
therein or necessary to make the statements and facts contained herein or
therein, in light of the circumstances in which they are made, not false and
misleading.
(r) SEC and State Securities Law Filings.
(i) FII has timely and properly filed all forms, reports and
documents required to be filed with the SEC since formation of FII. At the time
filed or, with respect to registration statements filed with the SEC under the
Securities Act, as of the effective date thereof, all such filings (A) complied
in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as the case may be, and (B) did not at the time they were
filed (or if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such
filings or necessary in order to make the statements in such filings, in the
light of the circumstances under which they were made, not misleading.
(ii) Each of the financial statements (including, in each case, any
related notes) contained in FII's SEC filings complied as to form in all
material respects with the applicable rules and regulations with respect
thereto, was prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes to such
financial statements or, in the case of unaudited statements, as permitted by
Form 10-Q of the SEC) and fairly presented the financial position of FII as of
the dates and the results of its operations and cash flows for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or are not
expected to be material in amount.
(s) Tax Treatment. Neither FII nor, to the Knowledge of FII, any of its
Affiliates has taken or agreed to take action that would prevent the Merger from
constituting a reorganization qualifying under the provisions of Section 368 of
the Tax Code.
Section 7. Conditions to the Merger. The respective obligation of each
party to effect the Merger and the other transactions contemplated herein shall
be subject to the fulfillment at or prior to the Closing Date of the following
conditions, any or all of which may be waived, in whole or in part by the
parties hereto, to the extent permitted by applicable law:
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(a) The Stock Split shall have been consummated.
(b) The transactions contemplated by the Repurchase Agreement and the
Purchase Agreement shall be effective at the Effective Time.
(c) Any governmental or third party approvals required to effect the
Merger shall have been obtained.
Section 8. Amish Pasta Conditions to the Merger. The obligation of Amish
Pasta to effect the Merger shall be subject to the fulfillment at or prior to
the Closing Date of the following conditions, unless waived by Amish Pasta:
(a) Each of the representations and warranties of FII contained in this
Agreement shall be true and correct as of the date of this Agreement, except to
the extent that any changes, circumstances or events making such representations
and warranties not true or correct would not, individually or in the aggregate,
constitute an Adverse Effect.
(b) FII shall have performed or complied in all material respects with all
agreements and covenants required by this Agreement to be performed or complied
with by it.
(c) From the date of this Agreement through the Effective Time, there
shall not have occurred any change, circumstance or event concerning FII that
has had or could be reasonably likely to have an Adverse Effect.
Section 9. FII and Acquisition Sub Conditions. The obligations of FII and
Acquisition Sub to effect the Merger shall be subject to the fulfillment at or
prior to the Closing Date of the following conditions, unless waived by FII:
(a) Each of the representations and warranties of Amish Pasta contained in
this Agreement shall be true and correct as of the date of this Agreement,
except to the extent that any changes, circumstances or events making such
representations and warranties not true or correct would not, individually or in
the aggregate, constitute an Adverse Effect.
(b) Amish Pasta shall have performed or complied in all material respects
with all agreements and covenants required by this Agreement to be performed or
complied with by it on or prior to the Effective Time.
(c) From the date of this Agreement through the Effective Time, there
shall not have occurred any change, circumstance or event, concerning Amish
Pasta that has had or could be reasonably likely to have an Adverse Effect.
(d) FII shall have received from each holder of shares of Amish Pasta
capital stock, an investor suitability questionnaire in form and substance
satisfactory to FII, containing customary investment representations and
certifying that such holder qualifies as an "accredited investor" as defined in
Regulation D.
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Section 10. Indemnification. All rights to indemnification by Amish Pasta
and FII existing in favor of each individual who is an officer or director of
Amish Pasta or FII of the date of this Agreement (each such individual, an
"Indemnified Person") for his acts and omissions as a director or officer of
Amish Pasta or FII occurring prior to the Effective Time, as provided in Amish
Pasta or FII's articles of incorporation or bylaws (as in effect as of the date
of this Agreement) shall survive the Merger and shall continue in full force and
effect (to the fullest extent such rights to indemnification are available under
and are consistent with applicable law) for a period of six years from the
Closing Date.
Section 11. Confidentiality. Each party shall ensure that any nonpublic
information provided to it by any other party in confidence shall be treated as
strictly confidential and that all such confidential information that each party
or any of its respective officers, directors, employees, attorneys, agents,
investment bankers, or accountants may now possess or may hereinafter create or
obtain relating to the financial condition, results of operations, businesses,
properties, assets, liabilities, or future prospects of the other such parties,
any affiliate thereof, or any customer or supplier thereof shall not be
published, disclosed, or made accessible by any of them to any other person at
any time or used by any of them, in each case without the prior written consent
of the other party; provided, however, that the restrictions of this Section
shall not apply (a) as may otherwise be required by law, (b) as may be necessary
or appropriate in connection with the enforcement of this Agreement, or (c) to
the extent such information was in the public domain when received or thereafter
enters the public domain other than because of disclosures by the receiving
party. Each such party shall, and shall cause all of such other Persons who
received confidential information, from time to time to deliver to the
disclosing party all tangible evidence of such confidential information to which
the restrictions of this Section apply upon written request.
Section 12. Miscellaneous.
(a) Survival. The representations and warranties of the parties will
terminate at the Effective Time and only those covenants that by their terms
survive the Effective Time shall survive the Effective Time. This Section 12
shall survive the Effective Time.
(b) Press Releases and Public Announcements. No party will issue any press
release or make any public announcement relating to the subject matter of this
Agreement without the prior written approval of the other party; provided,
however, that any party may make any public disclosure it believes in good faith
is required by applicable law or any listing requirement or trading agreement.
(c) No Third-party Beneficiaries. This Agreement will not confer any
rights or remedies upon any person other than the parties and their respective
successors and permitted assigns.
(d) Notices. All notices required or permitted under this Agreement will
be in writing and will be given by certified or regular mail or by any other
reasonable means (including personal delivery, facsimile, or reputable express
courier) to the party to receive notice at the following addresses or at such
other address as any party may, by notice, direct:
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To FII: FII International, Inc.
Attention: President
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
With a copy to: Xxxxx Xxxx LLP
(which will not Attention: Xxxxxxx X. Xxxx, Esq.
constitute notice) 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Fax number: (000) 000-0000
To Amish Pasta: Amish Pasta Company, Inc.
Attention: Chief Executive Officer
0000 Xxxxx Xxxxx 00
Xxxxxxxxxxx, Xxxx 00000
Fax number: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxxxx, Esq.
(which will not 00 Xxxxxxxx Xxxxxx Xxxxx
constitute notice) Xxxxxxxxx, Xxxxxxxx 00000
Fax number: (000) 000-0000
All notices given by certified mail will be deemed as given on the delivery date
shown on the return mail receipt, and all notices given in any other manner will
be deemed as given when received.
(e) Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising from
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the waiving party, (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given, and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
(f) Further Assurances. The parties agree (a) to furnish upon request to
each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and of the documents referred to in this Agreement.
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(g) Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the parties and their respective successors and permitted
assigns. No party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of the
other party, which may be granted or withheld at the sole discretion of such
other party. Any unauthorized assignment is void.
(h) Severability. Any provision of this Agreement that is invalid, illegal
or unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal or unenforceable in any other jurisdiction.
(i) Expenses. Each party will pay all fees and expenses (including,
without limitation, legal and accounting fees and expenses) incurred by such
party in connection with the transactions contemplated by this Agreement.
(j) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Nevada, without giving effect to
principles of conflicts of laws.
(k) Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all of which
will be one and the same document.
(l) Entire Agreement. This Agreement, the schedules and exhibits hereto,
and the agreements and instruments to be delivered by the parties on Closing
represent the entire understanding and agreement between the parties and
supersede all prior oral and written and all contemporaneous oral negotiations,
commitments and understandings.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
Plan of Merger as of the date first above written.
FII INTERNATIONAL, INC.
By: /s/ Xxxxxxxxx Xxxx
----------------------------
Name: Alexander Man-Kit Ngan
Title: President
APC ACQUISITION CORP.
By: /s/ Xxxxxxxxx Xxxx
-----------------------------
Name: Alexander Man-Kit Ngan
Title: President
AMISH PASTA COMPANY, INC.
By: /s/ Xxxxx Xxxxxxx, Sr.
-----------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: President
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Schedule 1
Definitions
"Adverse Effect" means, with respect to each party, any effect or change
that would have a material adverse effect on the results of operations,
financial condition, assets, properties or business of the party, taken as a
whole, or on the ability of the party to consummate timely the transactions
contemplated hereby.
"Affiliate" has the meaning set forth in Exchange Act Rule 12b-2.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations promulgated thereunder.
"Effective Time" means the time of acceptance for record of the
Certificate of Fact of Merger by the Secretary of State of the State of Nevada
in accordance with the Nevada Revised Statute (but not earlier than the Closing
Date) or at such later time that the parties hereto shall have agreed upon and
designated in such filing in accordance with applicable law as the effective
time of the Merger.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Knowledge" means the actual knowledge of the executive officers of a
party, without independent investigation.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
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