Exhibt 2.1
MERGER AGREEMENT
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AGREEMENT AND PLAN OF MERGER
among
Columbia Bakeries, Inc.,
a Nevada corporation,
BP Acquisition, Inc.,
a Florida corporation
and
Brooklyn Pastry Inc.,
a Florida corporation
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LIST OF SCHEDULES AND EXHIBITS
TO
AGREEMENT AND PLAN OF MERGER
SCHEDULES
Schedule 4.1(a) Company and Acquisition Subsidiaries
Schedule 4.1(b) Company and Acquisition Conflicts
Schedule 4.1(c) Company Capitalization
Schedule 4.1(g) Issuance of Company Securities
Schedule 4.1(i) Company Taxes
Schedule 4.1(l) Company and Acquisition Legal Proceedings
Schedule 4.1(m) Company and Acquisition Changes or Events
Schedule 4.2(d) BP Financial Statements
Schedule 4.2(i) BP Legal Proceedings
Schedule 4.2(g) BP Liabilities
Schedule 4.2(m) BP Compliance with Law
EXHIBITS
Exhibit 2.2(a) Escrow Agreement
Exhibit 6.1(a) Company Certified Resolutions
Exhibit 6.1(b) Opinion of Counsel to the Company
Exhibit 6.1(c) Opinion of BP counsel re Rule 504
Exhibit 6.1(d) Counsel to the Company's Instruction Letter to Transfer
Agent
Exhibit 6.1(e) Acquisition Certified Resolutions
Exhibit 6.1(f) Company Officer's Certificate
Exhibit 6.1(g) Opinion of Counsel to Acquisition
Exhibit 6.1(h) Acquisition Officer's Certificate
Exhibit 6.2(a) BP Certified Resolutions
Exhibit 6.2(b) Opinion of BP counsel
Exhibit 6.2(c) Opinion of BP counsel re Rule 504
Exhibit 6.2(e) BP Officer's Certificate
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of June
26, 2003, by and between Columbia Bakeries, Inc., a Nevada corporation (the
"Company"), BP Acquisition, Inc., a Florida corporation ("Acquisition") and
Brooklyn Pastry Inc., a Florida corporation ("BP").
RECITALS
WHEREAS, the Company and BP desire to merge Acquisition with and
into BP whereby BP shall be the surviving entity pursuant to the terms and
conditions set forth herein and whereby the transaction shall qualify as a tax
free exchange pursuant to Section 351 of the Internal Revenue Code (the "IRC");
WHEREAS, in furtherance of such combination, the Boards of Directors
of the Company, Acquisition, and BP have each approved the merger of Acquisition
with and into BP (the "Merger"), upon the terms and subject to the conditions
set forth herein, in accordance with the applicable provisions of the Florida
Business Corporations Law (the "FBCL");
WHEREAS, the shareholder of BP desire to exchange all of its shares
of the capital stock of BP (the "BP Capital Stock") for shares of the capital
stock of the Company (the "Company Capital Stock") as a tax free exchange
pursuant to Section 351 of the IRC;
WHERAS, just prior to the Merger, the holders of BP's 1% Convertible
Debentures Due June 25, 2008 in the aggregate principal amount of Nine Hundred
Eighty Thousand Dollars ($980,000) (the "BP First Debentures") and BP's 1%
Convertible Debenture Due June 25, 2008 in the principal amount of Twenty
Thousand Dollars ($20,000) (the "BP Second Debenture" and, together with the BP
First Debentures, the "BP Debentures") are convertible, at the option of the
holders, into BP Common Stock and upon the consummation of the Merger will be
convertible in the shares of the Company's common stock, par value $.001 per
share (the "Company Common Stock") (the "Company Underlying Shares");
WHEREAS, upon the effectiveness of the Merger, the Company will
substitute the Company Common Stock underlying the BP Debentures for BP's common
stock, no par value (the "BP Common Stock"), the Company will assume the
obligations, jointly and severally, with BP under the BP Debentures and the
Company will assume the obligations of BP under that certain Convertible
Debenture Purchase Agreement dated even date herewith between BP and HEM Mutual
Assurance LLC ("HEM") (the "Purchase Agreement") and BP will be released from
certain of such obligations; and
WHEREAS, all defined terms used herein not otherwise defined herein
shall have the meanings ascribed to such terms in the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as hereinafter defined) and
subject to and upon the terms and conditions of this Agreement and the FBCL
Acquisition shall be merged with and into BP pursuant to the Merger. Following
the Merger, BP shall continue as the surviving corporation (the "Surviving
Corporation") and the separate corporate existence of Acquisition shall cease.
As part of the Merger and as more fully described in Section 2.1, (i) the One
Hundred (100) issued and outstanding shares of the BP Common Stock shall be
exchanged for Company Common Stock at the Exchange Ratio and (ii) each share of
Acquisition's issued and outstanding of common stock, par value $.001 per share
(the "Acquisition Common Stock"), shall be converted into one validly issued,
fully paid and non-assessable share of common stock, of no par value, of the
Surviving Corporation (the "Surviving Corporation Common Stock").
1.2 Effective Time. The Merger shall be consummated as promptly as
practicable after satisfaction of all conditions to the Merger set forth herein,
by filing with the Secretary of State of the State of Florida an articles of
merger (the "Articles of Merger"), and all other appropriate documents, executed
in accordance with the relevant provisions of the FBCL. The Merger shall become
effective upon the filing of the Articles of Merger. The time of such filing
shall be referred to herein as the "Effective Time."
1.3 Effects of the Merger. At the Effective Time, all the rights,
privileges, immunities, powers and franchises of Acquisition and BP and all
property, real, personal and mixed, and every other interest of, or belonging to
or due to each of Acquisition and BP shall vest in the Surviving Corporation,
and all debts, liabilities, obligations and duties of Acquisition and BP,
including, without limitation, the performance of all obligations and duties of
BP pursuant to the Purchase Agreement and the exhibits, schedules and all
documents executed in connection therewith or any other Transaction Document (as
defined in the Purchase Agreement), shall become the debts, liabilities,
obligations and duties of the Surviving Corporation without further act or deed,
all in the manner and to the full extent provided by the FBCL. Whenever a
conveyance, assignment, transfer, deed or other instrument or act is necessary
to vest any property or right in the Surviving Corporation, the directors and
officers of the respective constituent corporations shall execute, acknowledge
and deliver such instruments and perform such acts, for which purpose the
separate existence of the constituent corporations and the authority of their
respective directors and officers shall continue, notwithstanding the Merger.
1.4 Certificate of Incorporation. The Certificate of Incorporation
of BP, the Surviving Corporation, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation and thereafter may be amended or repealed in accordance with its
terms and applicable law.
1.5 By-Laws. At the Effective Time and without any further action on
the part of Acquisition and BP, the By-laws of BP, the Surviving Corporation,
shall be the By-laws of the Surviving Corporation and thereafter may be amended
or repealed in accordance with their terms or the Certificate of Incorporation
of the Surviving Corporation and as provided by law.
1.6 Directors. The directors of Acquisition at the Effective Time
shall be the directors of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be.
1.7 Officers. The officers of Acquisition at the Effective Time
shall be the officers of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly appointed
and qualified, as the case may be.
1.8 Tax-Free Reorganization. The parties intend that the Merger
shall be treated as a tax-free exchange pursuant to Section 351 of the Internal
Revenue Code of 1986, as amended (the "Code"). No party shall take any action or
fail to take any action that would adversely affect the treatment of the Merger
as a tax-free exchange.
ARTICLE II
CONVERSION OF BP SHARES AND ASSUMPTION OF BP DEBENTURES
2.1 Exchange and Cancellation of BP Common Stock.
(a) Subject to the provisions of Sections 2.4 and 2.5, each
share of BP Common Stock (the "BP Common Stock Shares") issued and outstanding
immediately prior to the Effective Time (other than shares canceled in
accordance with Section 2.1(b), shall, after giving effect to the one for thirty
reverse split of the Company's outstanding Common Stock effected on June 18,
2003 (the "Reverse Stock Split"), be converted into 2,667.0 (the "Exchange
Ratio") validly issued, fully paid and nonassessable shares of Company Common
Stock (the "Company Common Stock Shares"). As of the Effective Time, each BP
Common Stock Share shall no longer be outstanding and shall automatically be
canceled and retired, and each holder of a certificate representing any BP
Common Stock Share shall cease to have any rights with respect thereto other
than the right to receive Company Common Stock Shares to be issued in
consideration therefor upon the surrender of such certificate.
(b) Each share of BP Capital Stock held in the treasury of the
BP and each share of BP Capital Stock owned by Acquisition or Company shall be
canceled without any conversion thereof and no payment or distribution shall be
made with respect thereto.
(c) Each issued and outstanding share of Acquisition Common
Stock shall be converted into one validly issued, fully paid and nonassessable
share of Surviving Corporation Common Stock.
2.2 Escrow Materials. (a) At the Closing, the Company shall deposit
into escrow with Gottbetter & Partners, LLP, as escrow agent (the "Escrow
Agent") the following, which are hereinafter collectively referred to as the
"Escrow Materials," (i) the escrow agreement annexed hereto and made a part
hereof as Exhibit 2.2(a) (the "Escrow Agreement"), (ii) certificates
representing Fifty Million (50,000,000) shares of duly issued Company Common
Stock, without restriction and freely tradable pursuant to Rule 504 of
Regulation D of the Securities Act (the "Company Escrow Shares"), in share
denominations specified by the Purchaser, registered in the name of the
Purchaser and/or its assigns; and (iii) a power of attorney with respect to the
Company Underlying Shares and the Company Escrow Shares, in the form annexed to
the Escrow Agreement as Appendix I. The Escrow Materials shall be held in escrow
in accordance with the Escrow Agreement. The Escrow Materials shall be released
from escrow only in accordance with this Section 2.2 and the Escrow Agreement.
(b) Upon the effectiveness of the Merger and in accordance with
Section 2.7 hereof, the Company shall substitute the Company Common Stock for
the BP Common Stock with regard to all of the rights, specifically including the
conversion rights, under the BP Debentures.
2.3 Rule 504 Securities. The BP Debenture (which includes the Escrow
Shares for the Underlying Shares) was sold in accordance with Rule 504 of
Regulation D of the Securities Act of 1933, as amended (the "Securities Act"),
and Article 51 and related regulations of the Colorado Securities Act, to an
accredited investor residing in the State of Colorado. Accordingly, at the
Effective Time and pursuant to Rule 504, the applicable Colorado statutes, and
Section 3(a)(9) of the Securities Act, the BP Debenture (which include the
Company Escrow Shares for the Company Underlying Shares) shall continue to be
without restriction and shall be freely tradable in accordance with Rule 504.
2.4 Adjustment of the Exchange Ratio. In the event that, prior to
the Effective Time, any stock split, combination, reclassification or stock
dividend with respect to the Company Common Stock, any change or conversion of
Company Common Stock into other securities or any other dividend or distribution
with respect to the Company Common Stock (other than regular quarterly
dividends) should occur or, if a record date with respect to any of the
foregoing should occur, appropriate and proportionate adjustments shall be made
to the Exchange Ratio, and thereafter all references to an Exchange Ratio shall
be deemed to be to such Exchange Ratio as so adjusted.
2.5 No Fractional Shares. No certificates or scrip representing
fractional shares of Company Common Stock shall be issued upon the surrender for
exchange of certificates and such fractional share shall not entitle the record
or beneficial owner thereof to vote or to any other rights as a stockholder of
the Company. The number of shares of Company Common Stock to be issued shall be
rounded up to the nearest whole share.
2.6 Further Assurances. If at any time after the Effective Time the
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments or assurances or any other acts or things are necessary,
desirable or proper (a) to vest, perfect or confirm, of record or otherwise, in
the Surviving Corporation, its right, title or interest in, to or under any of
the rights, privileges, powers, franchises, properties or assets of either BP or
Acquisition or (b) otherwise to carry out the purposes of this Agreement, the
Surviving Corporation and its proper officers and directors or their designees
shall be authorized to execute and deliver, in the name and on behalf of either
BP or Acquisition , all such deeds, bills of sale, assignments and assurances
and do, in the name and on behalf of BP or Acquisition, all such other acts and
things necessary, desirable or proper to vest, perfect or confirm its right,
title or interest in, to or under any of the rights, privileges, powers,
franchises, properties or assets of BP or Acquisition, as applicable, and
otherwise to carry out the purposes of this Agreement.
2.7 BP Debentures. (a) As of the Effective Time, the Company
assumes, jointly and severally with BP, all of the obligations and
responsibilities under the BP Debentures to the holder or holders of the BP
Debentures. With respect to the BP Debenture, at the Effective Time, the Company
will (i) replace the BP Common Stock Shares, for which the BP Debentures are
convertible into, with the Company Common Stock Shares and (ii) replace the
Escrow Shares deposited with the Escrow Agent with the Fifty Million
(50,000,000) Company Common Stock Shares.
(a) At the Effective Time, (i) all references in the BP Debentures
to Company Common Stock (as defined in the BP Debentures) shall be references to
Company Common Stock (as defined herein) and (ii) all references to the Company
(as defined in the BP Debentures) in the BP Debentures shall be read as
references to the Company (as defined herein) as if the BP Debentures were
issued on the date the BP Debentures were issued, by the Company (as defined
herein), specifically including all calculations in the BP Debentures such as
the determination of the conversion price, the Conversion Price, the Fixed
Conversion Price and the Floating Conversion Price.
(b) At the Effective Time, BP shall assign and the Company shall
assume all of BP's obligations and covenants under the Purchase Agreement as if
the Company executed the Purchase Agreement instead of the Company on the date
thereof. At the Effective Time, all references to the Company (as defined in the
Purchase Agreement) in the Purchase Agreement shall mean the Company (as defined
herein) and all references to dates or tolling of periods shall be read as if
the Company (as defined herein) executed the Purchase Agreement instead of the
Company (as defined in the Purchase Agreement). At the Effective Time, all of
the remedies available to the current and future holders of the BP Debentures
under the Purchase Agreement against the Company (as defined in the Purchase
Agreement) shall be available against the Company (as defined herein).
(c) The provisions described in this Section 2.7 shall not be
amended and shall be in effect until the earlier of (i) one (1) year after all
of the BP Convertible
Debentures have been converted into Company Common Stock Shares and (ii) six (6)
years from the date the BP Debentures were issued.
(d) The current and future holders of the BP Debentures shall be
third party beneficiaries of this Agreement.
ARTICLE III
CLOSING
Subject to satisfaction of the conditions to closing set forth in
this Agreement and unless this Agreement is otherwise terminated in accordance
with the provisions contained herein, the closing of the Merger and the
Contemplated Transactions (the "Post-Closing") shall take place at the offices
of Gottbetter & Partners, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx as promptly
as practicable after satisfaction of the conditions set forth in this Agreement,
which in no event shall be more than ten days after the Closing Date under the
Purchase Agreement (except if such 10th day is not a Business Day, then the next
Business Day) (the "Post-Closing Date").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Company and Acquisition.
Each of Acquisition and the Company hereby make the following representations
and warranties to BP, all of which shall survive the Closing:
(a) Organization and Good Standing. Acquisition is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida, with full corporate power and authority to conduct its
business as it is now being conducted, to own or use the properties and assets
that it owns or uses, and to perform all its obligations under this Agreement,
the BP Debentures and the Applicable Contracts. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada, with full corporate power and authority to conduct its business
as it is now being conducted, to own or use the properties and assets that it
owns or uses, and to perform all its obligations under this Agreement and the BP
Debentures. Each of the Company and Acquisition has no subsidiaries other than
as set forth on Schedule 4.1(a) hereto (individually, a "Subsidiary" and
collectively, the "Subsidiaries"). Each of the Subsidiaries is a corporation,
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with the full corporate power and authority
to own and use its properties and assets and to carry on its business as
currently conducted. Each of the Company, Acquisition and the Subsidiaries is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which either the ownership or use of the properties
owned or used by it, or the nature of the activities conducted by it, requires
such qualification.
(b) Authority; No Conflict.
i. This Agreement and any agreement executed in connection
herewith constitute the legal, valid and binding obligations of the Company and
Acquisition, enforceable against the Company and Acquisition in accordance with
their respective terms, except as such enforceability is limited by bankruptcy,
insolvency and other laws affecting the rights of creditors and by general
equitable principles. The Company has the absolute and unrestricted right,
power, authority and capacity to execute and deliver this Agreement and any
agreement executed in connection herewith and to perform its obligations
hereunder and thereunder.
ii. Except as set forth in Schedule 4.1(b) hereto, neither the
execution and delivery of this Agreement by each of the Company and Acquisition,
nor the consummation or performance by each of any of its respective obligations
contained in this Agreement or in connection with the Contemplated Transactions
will, directly or indirectly (with or without notice or lapse of time):
a. contravene, conflict with or result in a
violation of (x) any provision of the Organizational Documents of the Company or
Acquisition, as the case may be, or (y) any resolution adopted by the board of
directors or the shareholders of the Company or Acquisition, as the case may be;
b. contravene, conflict with or result in a
violation of, or give any governmental body or other Person the right to
challenge any of the Contemplated Transactions or to exercise any remedy or
obtain any relief under, any Legal Requirement or any Order to which the Company
or Acquisition or any of the assets owned or used by the Company or Acquisition
may be subject;
c. contravene, conflict with or result in a
violation or breach of any provision of, or give any Person the right to declare
a default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate or modify, this Agreement, the BP
Debentures or any Applicable Contract;
d. result in the imposition or creation of any
material encumbrance upon or with respect to any of the material assets owned
or used by the Company or Acquisition;
e. cause the Company or Acquisition to become
subject to, or to become liable for the payment of, any tax; or
f. cause any of the assets owned by the Company or
Acquisition to be reassessed or revalued by any taxing authority or other
governmental body, except in connection with the transfer of real estate
pursuant to this Agreement or the Contemplated Transactions.
(c) Capitalization. The entire authorized Company Capital Stock
consists of 300,000,000 shares of Company Common Stock, of which 6,652,007shares
are issued and outstanding and 5,000,000 shares of preferred stock, par value
$.001 per share, of which 1,667 shares of Series A Preferred Stock are issued
and outstanding. There are no other outstanding equity securities of the
Company. No legend or other reference to any purported encumbrance appears upon
any certificate representing the Company Capital Stock other than a standard
Securities Act legend. All of the issued and outstanding shares of the Company
Capital Stock have been duly authorized and validly issued and are fully paid
and non-assessable. Except for this Agreement and as disclosed in Schedule
4.1(c) hereto, there are no outstanding options, warrants, script, rights to
subscribe to, registration rights, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of the Company Common Stock, or contracts, commitments,
understandings, or arrangements by which the Company or any Subsidiary is or may
become bound to issue additional shares of the Company Common Stock, or
securities or rights convertible or exchangeable into shares of the Company
Common Stock. None of the outstanding Company Capital Stock was issued in
violation of the Securities Act or any other legal requirement.
(d) Financial Statements. The Company has delivered to BP a copy of
its Form 10-KSB Annual Report for the fiscal year ended December 31, 2001 and
December 31, 2002 as filed with the SEC (the "Reports"). The financial
statements contained in the Reports are in all material respects in accordance
with the books and records of the Company and have been prepared in accordance
with GAAP applied on a consistent basis throughout the periods indicated, all as
more particularly set forth in the notes to such statements. The consolidated
balance sheets (the "Company Balance Sheets") present fairly in all material
respects as of their dates the consolidated financial condition of the Company
and its subsidiaries. Except as and to the extent reflected or reserved against
in the Company Balance Sheets (including the notes thereto), the Company did not
have, as of the date of any such Company Balance Sheet, any material liabilities
or obligations (absolute or contingent) of a nature customarily reflected in a
balance sheet or the notes thereto. The consolidated statements of operations,
consolidated statements of shareholders' equity and changes in consolidated
statements of cash flows present fairly in all material respects the results of
operations and changes in financial position of the Company and its subsidiaries
for the periods indicated.
(e) SEC Filings. The Company has filed all reports required to be
filed with the SEC under the rules and regulations of the SEC and all such
reports have complied in all material respects, as of their respective filing
dates and effective dates, as the case may be, with all the applicable
requirements of the Securities Exchange Act of 1934, as amended. As of the
respective filing and effective dates, none of such reports (including without
limitation, the Reports) contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(f) Absence of Material Adverse Change. Since the date of the latest
Company Balance Sheets, there have been no events, changes or occurrences which
have
had or are reasonably likely to have, individually or in the aggregate, a
material adverse effect on the Company's business or financial condition.
(g) Issuance of Company Securities. The Company Common Stock Shares,
the Company Underlying Shares and the Company Escrow Shares, when issued in
accordance with this Agreement, the BP Debentures and the Escrow Agreement shall
be duly authorized, validly issued, fully-paid and nonassessable. The Company
has and at all times while the BP Debentures are outstanding will continue to
maintain an adequate reserve of shares of the Company Common Stock to enable it
to perform its obligations under this Agreement and BP Debenture. Except as set
forth in Schedule 4.1(g) hereto, there is no equity line of credit or
convertible security or instrument outstanding of the Company; provided,
however, that nothing contained in this Section 4.1(g) shall be deemed to permit
any equity line of credit or convertible security or instrument of the Company,
other than that is or may be issued to HEM Mutual Assurance LLC or any of its
Affiliates or assigns.
(h) Undisclosed Liabilities. Except as disclosed in any Schedule to
this Agreement, none of the Company, Acquisition or the Subsidiaries has any
material liabilities (contingent or otherwise) except those liabilities (i) that
are reflected in the Company Balance Sheets or in the notes thereto, or
disclosed in the notes therein in accordance with GAAP or, in accordance with
GAAP, are not required to be so reflected or disclosed, or (ii) that were
incurred after the date of the Company Balance Sheets in the Ordinary Course of
Business, none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty, tort,
infringement, or violation of law or could reasonably be expected to have a
material adverse effect on the business or financial condition of the Company,
the Subsidiaries and Acquisition taken as a whole.
(i) Taxes.
i. The Company has filed or caused to be filed on a timely
basis all tax returns that are or were required to be filed by it pursuant to
applicable Legal Requirements. The Company has paid, or made provision for the
payment of, all taxes that have or may have become due pursuant to those tax
returns or otherwise, or pursuant to any assessment received by the Company,
except such taxes, if any, as are listed in Schedule 4.1(i) hereto and are being
contested in good faith as to which adequate reserves have been provided in the
Company Balance Sheets.
ii. All tax returns filed by the Company are true, correct and
complete in all material respects.
(j) Employee Benefits. The Company does not sponsor or otherwise
maintain a "pension plan" within the meaning of Section 3(2) of ERISA or any
other retirement plan other than the Company Profit Sharing and 401(k) Plan and
Trust that is intended to qualify under Section 401 of the Code, nor do any
unfunded liabilities exist with respect to any employee benefit plan, past or
present. No employee benefit plan, any trust created thereunder or any trustee
or administrator thereof has engaged in a
"prohibited transaction," as defined in Section 4975 of the Code, which may have
a material adverse effect on the condition, financial or otherwise, of the
Company.
(k) Governmental Authorizations. The Company, Acquisition and the
Subsidiaries have all permits that are or will be legally required to enable
them to conduct their business in all material respects as now conducted.
(l) Legal Proceedings; Orders.
i. Except as set forth in Schedule 4.1(l) hereto, there is no
material pending Proceeding:
a. that has been commenced by or against the
Company, Acquisition or the Subsidiaries, or any of the assets owned or used
by, the Company, Acquisition or the Subsidiaries; or
b. that challenges, or that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any
Contemplated Transaction.
ii. Except as set forth in Schedule 4.1(l) hereto:
a. there is no material Order to which the Company
or the Subsidiaries, or any of the assets owned or used by the Company,
Acquisition or the Subsidiaries, is subject; and
b. no officer, director, agent, or employee of the
Company or Acquisition is subject to any material Order that prohibits such
offer, director, agent or employee from engaging in or continuing any conduct,
activity or practice relating to the business of the Company or Acquisition, as
the case may be.
(m) Absence of Certain Changes and Events. Except as related to the
Reverse Stock Split or as set forth in Schedule 4.1(m) hereto, since the date of
the most recent Company Balance Sheets, the Company and the Subsidiaries and
Acquisition, since the date of its inception, have conducted their business only
in the Ordinary Course of Business, there has not been any material adverse
effect on the Company's, Acquisition's or the Subsidiaries' business or
operations, and there has not been any:
i. change in the authorized or issued Company Capital Stock or
the authorized or issued capital stock of Acquisition and the Subsidiaries;
grant of any stock option or right to purchase shares of capital stock of the
Company; issuance of any equity lines of credit, security convertible into such
capital stock; grant of any registration rights; purchase, redemption,
retirement, or other acquisition or payment of any dividend or other
distribution or payment in respect of shares of capital stock;
ii. amendment to the Organizational Documents of the Company,
Acquisition or the Subsidiaries;
iii. damage to or destruction or loss of any material asset or
property of the Company, Acquisition or the Subsidiaries, whether or not covered
by insurance, materially and adversely affecting the properties, assets,
business, financial condition, or prospects of the Company, Acquisition or the
Subsidiaries;
iv. receipt of notice that any of their substantial customers
have terminated or intends to terminate their relationship, which termination
would have a material adverse effect on their financial condition, results or
operations, business assets or properties;
v. entry into any transaction other than in the Ordinary
Course of Business;
vi. entry into, termination of, or receipt of written notice
of termination of any material (i) license, distributorship, dealer, sales
representative, joint venture, credit, or similar agreement, or (ii) contract or
transaction;
vii. sale (other than sales of inventory in the Ordinary
Course of Business), lease, or other disposition of any asset or property of the
Company, Acquisition or the Subsidiaries or mortgage, pledge, or imposition of
any lien or other encumbrance on any material asset or property of the Company,
Acquisition or the Subsidiaries;
viii. cancellation or waiver of any claims or rights with a
value to the Company in excess of $10,000;
ix. material change in the accounting methods used by the
Company, Acquisition or the Subsidiaries; or
x. agreement, whether oral or written, by the Company,
Acquisition or the Subsidiaries to do any of the foregoing.
(n) No Default or Violation. The Company, Acquisition and the
Subsidiaries (i) are in material compliance with all applicable terms and
requirements of each material contract under which they have or had any
obligation or liability or by which they or any of the assets owned or used by
them is or was bound and (ii) is not in material violation of any Legal
Requirement.
(o) Certain Payments. Since the most recent date of the Company
Balance Sheets, neither the Company, Acquisition or the Subsidiaries, nor any
director, officer, agent or employee of the Company or the Subsidiaries has
directly or indirectly (a) made any contribution, gift, bribe, rebate, payoff,
influence payment, kickback or other payment to any Person, private or public,
regardless of form, whether in money, property or services (i) to obtain
favorable treatment in securing business, (ii) to pay for favorable treatment
for business secured, (iii) to obtain special concessions or for special
concessions already obtained, for or in respect of the Company, Acquisition or
the Subsidiaries or (iv) in violation of any Legal Requirement, or (b)
established or maintained any fund or asset that has not been recorded in the
books and records of the Company, Acquisition or the Subsidiaries.
(p) Brokers or Finders. The Company and Acquisition have not
incurred any obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar payment in connection with
this Agreement.
4.2 Representations and Warranties of BP. BP hereby makes the
following representations and warranties to the Company, all of which shall
survive the Closing:
(a) Organization and Good Standing. BP is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida with full power and authority to conduct its businesses as it is now
being conducted, to own or use the properties and assets that it owns or uses,
and to perform all of its obligations under this Agreement. BP was formed to
purchase certain baking equipment from Brooklyn Pastry, Inc., a New York
corporation, and to engage in the business of baking bread and pastry.
(b) Authority; No Conflict.
i. This Agreement and any agreement executed in connection
herewith have been duly authorized by all required action of BP and constitute
the legal, valid and binding obligations of BP, enforceable against BP in
accordance with their respective terms. BP has the absolute and unrestricted
right, power and authority to execute and deliver this Agreement and such other
agreements and to perform its obligations hereunder and thereunder.
ii Neither the execution and delivery of this Agreement by BP,
nor the consummation or performance by it of any of its obligations contained in
this Agreement or in connection with the Contemplated Transactions by the
Company will, directly or indirectly (with or without notice or lapse of time):
a. contravene, conflict with or result in a violation of (x)
any provision of the Organizational Documents of BP or (y) any resolution
adopted by the board of directors or the shareholders of BP;
b. contravene, conflict with or result in a violation of, or
give any governmental body or other Person the right to challenge any of the
Contemplated Transactions or to exercise any remedy or obtain any relief under,
any Legal Requirement or any Order to which BP or any of the assets owned or
used by BP may be subject;
c. contravene, conflict with or result in a violation or
breach of any provision of, or give any Person the right to declare a default or
exercise any remedy under, or to accelerate the maturity or performance of, or
to cancel, terminate or modify, this Agreement or any Applicable Contract;
d. result in the imposition or creation of any material
encumbrance upon or with respect to any of the material assets owned or used by
BP;
e. cause BP to become subject to, or to become liable for the
payment of, any tax; or
f. cause any of the assets owned by BP to be reassessed or
revalued by any taxing authority or other governmental body, except in
connection with the transfer of real estate pursuant to this Agreement or the
Contemplated Transactions.
iii. BP is not required to obtain any consent from any Person
in connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.
(c) Capitalization. The entire authorized BP Capital Stock consists
of 1,500 BP Common Stock, of which 100 shares are issued and outstanding. With
the exception of the BP Common Stock Shares and the BP Debenture, there are no
other outstanding equity securities of the Company. No legend or other reference
to any purported encumbrance appears upon any certificate representing the BP
Common Stock Shares. The BP Common Stock Shares have been duly authorized and
validly issued and are fully paid and non-assessable. Except as set forth in the
Purchase Agreement and for the BP Debentures, there are no outstanding options,
warrants, script, rights to subscribe to, registration rights, calls or
commitments of any character whatsoever relating to, or, securities, rights or
obligations convertible into or exchangeable for, or giving any Person any right
to subscribe for or acquire, any shares of BP Common Stock, or contracts,
commitments, understandings, or arrangements by which BP is or may become bound
to issue additional shares of BP Common Stock, or securities or rights
convertible or exchangeable into shares of BP Common Stock. None of the
outstanding BP Common Stock Shares were issued in violation of the Securities
Act or any other legal requirement. BP does not own, and has no contract to
acquire, any equity securities or other securities of any Person or any direct
or indirect equity or ownership interest in any other business.
(d) Financial Statements. BP has delivered to the Company a balance
sheet of BP as at March 31, 2003 (the "BP Balance Sheet"), and a statement of
operations for the period from inception to March 31, 2003. Such financial
statements were prepared in accordance with GAAP, are set forth in Schedule
4.2(d) hereto and fairly present the financial condition and the results of
operations of BP as at March 31, 2003 of and for the period then ended.
(e) Absence of Material Adverse Change. Since the date of the most
recent BP Balance Sheet provided under Section 4.2(d) hereof, there have been no
events, changes or occurrences which have had or are reasonably likely to have,
individually or in the aggregate, a material adverse effect on the Company.
(f) Books and Records. The books of account, minute books, stock
record books, and other records of BP, all of which have been made available to
the
Company, are complete and correct and have been maintained in accordance with
sound business practices, including the maintenance of an adequate system of
internal controls. The minute books of BP contain accurate and complete records
of all meetings held of, and corporate action taken by, the shareholders, the
Board of Directors, and any committees of the Board of Directors of BP.
(g) No Undisclosed Liabilities. There are no material liabilities of
BP, whether absolute, accrued, contingent, or otherwise, other than:
i. Liabilities set forth on, reserved against or reflected in
the BP Balance Sheet;
ii. Liabilities disclosed in this Agreement, the Exhibits
attached hereto, and in Schedule 4.2(g) or lists furnished pursuant hereto; or
iii. Liabilities incurred in the Ordinary Course of Business
since the BP Balance Sheet date, none of which had or is likely to have a
material adverse effect on the business, financial condition or results of
operations of BP, and none of which is required to be recorded under GAAP in
respect of any period prior to the BP Balance Sheet date, and none of which is
in respect of a material claim for damages, fines or other legal relief.
(h) Title to Properties; Encumbrances. BP has good and marketable
title to all the properties, interest in such properties and assets, real and
personal, reflected in the BP Balance Sheet or acquired after the date of such
balance sheet (except properties, interests and assets sold or otherwise
disposed of since such date, in the Ordinary Course of Business), free and clear
of all mortgages, liens, pledges, charges or encumbrances except (i) mortgages
and other encumbrances referred to in the notes to such balance sheet, (ii)
liens for current taxes not yet due and payable and (iii) such imperfections of
title and easements as do not materially detract from or interfere with the
present use of the properties subject thereto or affected thereby, or otherwise
materially impair the value of such properties or the present business
operations at such properties.
(i) Legal Proceedings; Orders.
i. Except as set forth in Schedule 4.2(i) hereto, there is no
material pending Proceeding:
a. that has been commenced or threatened by or
against BP or any of its officers and directors as such or that otherwise
relates to or may affect the business of, or any of the assets owned or used by,
BP; or
b. that challenges, or that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any
Contemplated Transaction.
ii. Except as set forth in Schedule 4.2(i) hereto:
a. there is no material Order to which BP, or any
of the assets owned or used by BP, is subject; and
b. no officer, director, agent, or employee of BP
is subject to any material Order that prohibits such offer, director, agent or
employee from engaging in or continuing any conduct, activity or practice
relating to the business of BP.
(j) Brokers or Finders. BP has incurred no liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions or other
similar payment in connection with this Agreement.
(k) No Default or Violation. BP (i) is in material compliance with
all applicable terms and requirements of each contract under which BP has or had
any obligation or liability or by which BP or any of the assets owned or used by
BP is or was bound and (ii) is not in violation of any Legal Requirement.
(l) Taxes.
i. BP has filed or caused to be filed on a timely basis all
tax returns that are or were required to be filed by it pursuant to applicable
Legal Requirements. BP has paid, or made provision for the payment of, all taxes
that have or may have become due pursuant to those tax returns or otherwise, or
pursuant to any assessment received by BP, except such taxes, if any, as are
listed in Schedule 4.2(l) hereto and are being contested in good faith as to
which adequate reserves have been provided in the BP Balance Sheets.
ii. All tax returns filed by BP are true, correct and complete
in all material respects.
(m) Absence of Certain Changes and Events. Except as set forth in
Schedule 4.2(m) hereto, since the date of the BP Balance Sheet, BP has conducted
its business only in the Ordinary Course of Business, there has not been any
material adverse effect on BP's business or operations, and there has not been
any:
i. change in the authorized or issued capital stock of BP;
grant of any stock option or right to purchase shares of capital stock of BP;
issuance of any security convertible into such capital stock; grant of any
registration rights; purchase, redemption, retirement, or other acquisition or
payment of any dividend or other distribution or payment in respect of shares of
capital stock;
ii. amendment to the Organizational Documents of BP;
iii. damage to or destruction or loss of any asset or property
of BP, whether or not covered by insurance or any other event or circumstance,
materially and adversely affecting the properties, assets, business, financial
condition, or prospects of BP;
iv. receipt of notice that any of its substantial customers
have terminated or intends to terminate their relationship, which termination
would have a material adverse effect on its financial condition, results or
operations, business assets or properties;
v. entry into any transaction other than in the Ordinary
Course of Business;
vi. entry into, termination of, or receipt of written notice
of termination of any material (i) license, distributorship, dealer, sales
representative, joint venture, credit, or similar agreement, or (ii) contract or
transaction;
vii. sale (other than sales of inventory in the Ordinary
Course of Business), lease, or other disposition of any asset or property of BP
or mortgage, pledge, or imposition of any lien or other encumbrance on any
material asset or property of BP;
viii. cancellation or waiver of any claims or rights with a
value to BP in excess of $10,000;
ix. material change in the accounting methods used by BP;
x. increase in salaries or bonuses or retention of any
consultant or executive; or
xi. agreement, whether oral or written, by BP to do any of the
foregoing.
(n) Compliance with Law. Except as set forth in Schedule 4.2(m)
hereto:
(a) BP has complied in all material respects with, and is not in
violation of, in any material respect, any Law to which it or its business is
subject; and
(b) BP has obtained all licenses, permits, certificates or other
governmental authorizations (collectively "Authorizations") necessary for the
ownership or use of its assets and properties or the conduct of its business
other than Authorizations (i) which are ministerial in nature and which BP has
no reason to believe would not be issued in due course and (ii) which, the
failure of BP to possess, would not subject BP to penalties other than fines not
to exceed $20,000 in the aggregate ("Immaterial Authorizations"); and
(c) BP has not received written notice of violation of, or knows of
any material violation of, any Laws to which it or its business is subject or
any Authorization necessary for the ownership or use of its assets and
properties or the conduct of its business (other than Immaterial
Authorizations).
(d) Environmental Laws. BP has not received any notice or claim (and
is not aware of any facts that would form a reasonable basis for any claim), or
entered into any negotiations or agreements with any other Person, and, to the
best knowledge of BP, BP is not the subject of any investigation by any
governmental or regulatory authority, domestic or foreign, relating to any
material or potentially material liability or remedial action under any
Environmental Laws. There are no pending or, to the knowledge of BP, threatened,
actions, suits or proceedings against BP or any of its properties, assets or
operations asserting any such material liability or seeking any material
remedial action in connection with any Environmental Laws.
(e) Intellectual Property. (i) BP owns, or is validly licensed or
otherwise has the right to use, all patents, and patent rights ("Patents") and
all trademarks, trade secrets, trademark rights, trade names, trade name rights,
service marks, service xxxx rights, copyrights and other proprietary
intellectual property rights and computer programs (the "Intellectual Property
Rights"), in each case, which are material to the conduct of the business of BP.
(ii) To the best knowledge of BP, BP has not interfered with,
infringed upon (without license to infringe), misappropriated or otherwise come
into conflict with any Patent of any other Person. BP has not interfered with,
infringed upon, misappropriated or otherwise come into conflict with any
Intellectual Property Rights of any other Person. BP has not received any
written charge, complaint, claim, demand or notice alleging any such
interference, infringement, is appropriation or violation (including any claim
that BP must license or refrain from using any Patents or Intellectual Property
Rights of any other Person) which has not been settled or otherwise fully
resolved. To the best knowledge of BP, no other Person has interfered with,
infringed upon (without license to infringe), misappropriated or otherwise come
into conflict with any Patents or Intellectual Property Rights of BP.
(f) Employees. (a) BP has complied in all respects with all
applicable Laws respecting employment and employment practices, terms and
conditions of employment, wages and hours, other than instances of
non-compliance which, individually or in the aggregate, could not reasonably be
expected to result in penalties other than fines in an amount not exceeding
$50,000 in the aggregate, and BP is not liable for any arrears of wages or any
taxes or penalties for failure to comply with any such Laws; (b) BP believes
that BP's relations with its employees is satisfactory; (c) there are no
controversies pending or, to the best knowledge of BP, threatened between BP and
any of its employees, which controversies have or could reasonably be expected
to have a material adverse effect; (d) BP is not a party to any collective
bargaining agreement or other labor union contract applicable to persons
employed by BP, nor, to the best knowledge of BP, are there any activities or
proceedings of any labor union to organize any such employees; (e) there are no
unfair labor practice complaints pending against BP before the National Labor
Relations Board or any current union representation questions involving
employees of BP; (f) there is no strike, slowdown, work stoppage or lockout
existing, or, to the best knowledge of BP, threatened, by or with respect to any
employees of BP; (g) no charges are pending before the Equal Employment
Opportunity Commission or any state, local or foreign agency responsible for the
prevention of unlawful employment practices with respect to BP; (h) there are no
claims pending against BP before any workers' compensation board; and (i) BP has
not received notice that any Federal, state, local or foreign agency
responsible for the enforcement of labor or employment laws intends to conduct
an investigation of or relating to BP and, to the best knowledge of BP, no such
investigation is in progress.
(g) Employee Benefit Plans. There no "employee pension benefit
plans" (as defined in Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")) or "employee welfare benefit plans" (as
defined in Section 3(1)of ERISA) maintained, or contributed to, by BP for the
benefit of any current or any former employees, officers or directors of BP.
ARTICLE V
COVENANTS
5.1 Covenants of the Company and Acquisition.
(a) Conduct of Business. Prior to and through the Post-Closing Date,
each of the Company and Acquisition shall:
i. conduct its business only in the Ordinary Course of
Business;
ii. use its commercially reasonable efforts to preserve intact
the current business organization of the Company and Acquisition, as the case
may be, keep available the services of the current officers, employees and
agents of the Company and Acquisition, as the case may be, and maintain the
relations and good will with suppliers, customers, landlords, creditors,
employees, agents and others having business relationships with the Company and
Acquisition, as the case may be;
iii. not pay, incur or declare any dividends or distributions
with respect to its shareholders or amend its Certificate of Incorporation or
By-Laws, without the prior written consent of the BP Debenture Holder;
iv. not authorize, issue, sell, purchase or redeem any shares
of its capital stock or any options or other rights to acquire ownerships
interests without the prior written consent of the BP Debenture Holder;
v. not incur any indebtedness for money borrowed or issue and
debt securities, or incur or suffer to be incurred any liability or obligation
of any nature whatsoever, except those incurred in the Ordinary Course of
Business, or cause or permit any material lien, encumbrance or security interest
to be created or arise on or in respect of any material portion of its
properties or assets;
vi. not make any investment of a capital nature either by
purchased stock or securities, contribution to capital, property transfer or
otherwise, or by the purchase of any property or assets of any other Person;
vii. not do any other act which would cause representation or
warranty of the Company in this Agreement to be or become untrue in any material
respect or that is not in the ordinary course of business consistent with past
practice;
viii. report periodically to the BP Debenture Holder
concerning the status of the business and operations of the Company; and
ix. confer with the BP Debenture Holder concerning operational
matters of a material nature.
(b) Proposals; Other Offers. Commencing on the date of execution of
this Agreement through the Post-Closing Date, each of the Company and
Acquisition shall not, directly or indirectly (whether through an employee, a
representative, an agent or otherwise), solicit or encourage any inquiries or
proposals, engage in negotiations for or consent to or enter into any agreement
providing for the acquisition of its business. Each of the Company and
Acquisition shall not, directly or indirectly (whether through an employee, a
representative, an agent or otherwise) disclose any nonpublic information
relating to the Company and Acquisition or afford access to any of the books,
records or other properties of the Company and Acquisition to any person or
entity that is considering, has considered or is making any such acquisition
inquiry or proposal relating to the Company's and Acquisition's business.
(c) Further Assurances. Prior to the Post-Closing Date, with the
cooperation of BP where appropriate, each of the Company and Acquisition shall
use commercially reasonable efforts to:
i. promptly comply with all filing requirements which federal,
state or local law may impose on the Company or Acquisition, as the case may be,
with respect to the Contemplated Transactions by this Agreement; and
ii. take all actions necessary to be taken, make any filing
and obtain any consent, authorization or approval of or exemption by any
governmental authority, regulatory agency or any other third party (including
without limitation, any landlord or lessor of the Company and any party to whom
notification is required to be delivered or from whom any form of consent is
required) which is required to be filed or obtained by the Company or
Acquisition in connection with the Contemplated Transactions by this Agreement.
(d) Access to Additional Agreements and Information. Prior to the
Post-Closing Date, the Company and Acquisition shall make available to the BP
Debenture Holder (as well as its shareholders, counsel, accountants and other
representatives) any and all agreements, contracts, documents, other instruments
and personnel material of the Company's and Acquisition's business, including
without limitation, those contracts to which the Company or Acquisition is a
party and those by which each of its business or any of the Company's or
Acquisition's assets are bound.
5.2 Covenants of BP.
(a) Conduct of Business. Prior to and through the Post-Closing Date,
BP shall:
i. conduct its business only in the Ordinary Course of
Business;
ii. use its commercially reasonable efforts to preserve intact
the current business organization of BP, keep available the services of the
current officers, employees and agents of BP, and maintain the relations and
good will with suppliers, customers, landlords, creditors, employees, agents and
others having business relationships with BP;
iii. not pay, incur or declare any dividends or distributions
with respect to its shareholders or amend its Certificate of Incorporation or
By-Laws, without the prior written consent of the Company and BP Debenture
Holder;
iv. not authorize, issue, sell, purchase or redeem any shares
of its capital stock or any options or other rights to acquire ownerships
interests without the prior written consent of the Company and BP Debenture
Holder;
v. not incur any indebtedness for money borrowed or issue and
debt securities, or incur or suffer to be incurred any liability or obligation
of any nature whatsoever, except those incurred in the Ordinary Course of
Business, or cause or permit any material lien, encumbrance or security interest
to be created or arise on or in respect of any material portion of its
properties or assets;
vi. not make any investment of a capital nature either by
purchased stock or securities, contribution to capital, property transfer or
otherwise, or by the purchase of any property or assets of any other Person;
vii. not do any other act which would cause representation or
warranty of BP in this Agreement to be or become untrue in any material respect
or that is not in the Ordinary Course of Business consistent with past practice;
viii. report periodically to the BP Debenture Holder
concerning the status of the business and operations of BP; and
ix. confer with the BP Debenture Holder concerning operational
matters of a material nature.
(b) Proposals; Other Offers. Commencing on the date of execution of
this Agreement through the Post-Closing Date, BP shall not, directly or
indirectly (whether through an employee, a representative, an agent or
otherwise), solicit or encourage any inquiries or proposals, engage in
negotiations for or consent to or enter into any agreement providing for the
acquisition of its business. BP shall not, directly or indirectly (whether
through an employee, a representative, an agent or otherwise)
disclose any nonpublic information relating to BP or afford access to any of the
books, records or other properties of BP to any person or entity that is
considering, has considered or is making any such acquisition inquiry or
proposal relating to the BP's business.
(c) Further Assurances. Prior to the Post-Closing Date, with the
cooperation of the Company where appropriate, BP shall:
i. promptly comply with all filing requirements which federal,
state or local law may impose on BP with respect to the Contemplated
Transactions by this Agreement; and
ii. take all actions necessary to be taken, make any filing
and obtain any consent, authorization or approval of or exemption by any
governmental authority, regulatory agency or any other third party (including
without limitation, any landlord or lessor of the Company and any party to whom
notification is required to be delivered or from whom any form of consent is
required) which is required to be filed or obtained by BP in connection with the
Contemplated Transactions by this Agreement.
(d) Actions by BP. BP shall take no action or enter into any
agreements or arrangements except as may be required by this Agreement.
(e) No Change in Capital Stock. Prior to the Effective Time, no
change will be made in the authorized, issued or outstanding capital stock of
BP, and no subscriptions, options, rights, warrants, calls, commitments or
agreements relating to the authorized, issued or outstanding capital stock of BP
will be entered into, issued, granted or created.
(f) Access to Additional Agreements and Information. Prior to the
Post-Closing Date, BP shall make available to the Company and BP Debenture
Holder (as well as its shareholders, counsel, accountants and other
representatives) any and all agreements, contracts, documents, other instruments
and personnel material of BP's business, including without limitation, those
contracts to which BP is a party and those by which its business or any of BP's
assets are bound.
(g) Further Assurances. Prior to the Post-Closing Date, with the
cooperation of the Company and Acquisition where appropriate, BP shall use
commercially reasonable efforts to:
i. promptly comply with all filing requirements which federal,
state or local law may impose on BP with respect to the Contemplated
Transactions by this Agreement; and
ii. take all actions necessary to be taken, make any filing
and obtain any consent, authorization or approval of or exemption by any
governmental authority, regulatory agency or any other third party (including
without limitation, any landlord or lessor of BP and any party to whom
notification is required to be delivered or
from whom any form of consent is required) which is required to be filed or
obtained by BP in connection with the Contemplated Transactions by this
Agreement.
5.3 Governmental Filings and Consents. The Company, Acquisition and
BP shall cooperate with one another in filing any necessary applications,
reports or other documents with any federal or state agencies, authorities or
bodies having jurisdiction with respect to the business of the Company, or
Acquisition or the by this Agreement and in seeking any necessary approval,
consultation or prompt favorable action of, with or by any of such agencies,
authorities or bodies.
5.4 Publicity. Any public announcement or press release relating to
this Agreement or the Contemplated Transactions must be approved by the BP
Debenture Holder and the Company in writing before being made or released. The
Company shall have the right to issue a press release without the BP Debenture
Holder's written approval if in the opinion of the Company's counsel such a
release is necessary to comply with SEC Rules and Regulations; provided that,
the BP Debenture Holder receives a copy of such prepared press release for
purposes of review at least 24 hours before it is issued. This 24 hour period
may be shortened if in the opinion of the Company's counsel it is required by
law; provided that, the BP Debenture Holder and the Company receives a copy of
such release as long as reasonably practical before it is issued.
5.5 Tax Returns. The current officers of the Company shall have the
right to prepare any tax returns of the Company with respect to any period that
ends on or before the Post-Closing Date, which tax returns shall be prepared in
a manner consistent with prior tax returns. Such tax returns shall be timely
filed by the Company. BP and the Company shall cooperate with said officers in
the preparation of such tax returns. The Company may not amend any Company tax
return relating to a period through or including the Post-Closing Date without
the prior written consent of the BP Debenture Holder, which consent will not be
unreasonably withheld.
ARTICLE VI
CONDITIONS
6.1 Conditions to Obligations of BP. The obligation of BP to
consummate the Contemplated Transactions is subject to the fulfillment of each
of the following conditions:
(a) Copies of Resolutions. At the Post-Closing (i) the Company shall
have furnished BP with a certificate of its CEO or president, as the case may
be, in the form of Exhibit 6.1(a) annexed hereto, certifying that attached
thereto are copies of resolutions duly adopted by the board of directors of the
Company authorizing the execution, delivery and performance of this Agreement
and all other necessary or proper corporate action to enable the Company to
comply with the terms of this Agreement and (ii) Acquisition shall have
furnished BP with a certificate of its CEO or president, as the case may be, in
the form of Exhibit 6.1(e) annexed hereto, certifying that attached
thereto are copies of resolutions duly adopted by the board of directors of
Acquisition authorizing the execution, delivery and performance of this
Agreement and all other necessary or proper corporate action to enable
Acquisition to comply with the terms of this Agreement.
(b) Opinion of Company's Counsel. The Company shall have furnished
to BP, at the Post-Closing, with an opinion of its legal counsel, dated as of
the Post-Closing Date, substantially in the form of Exhibit 6.1(b) annexed
hereto.
(c) Opinion of Company's Counsel. The Company shall have furnished
to BP, at the Post-Closing, with an opinion of the special securities counsel,
counsel to the Company, dated as of the Post-Closing Date, substantially in the
form of Exhibit 6.1(c) annexed hereto.
(d) Instruction Letter to Transfer Agent. The Company shall have
furnished to BP, at the Post-Closing, with a letter from its legal counsel to
its transfer agent, to accept the legal opinion set forth in Section 6.1(c),
dated as of the Post-Closing Date, substantially in the form of Exhibit 6.1(d)
annexed hereto.
(e) Accuracy of Representations and Warranties; Performance of
Covenants. Each of the representations and warranties of the Company and
Acquisition set forth in this Agreement was true, correct and complete in all
material respects when made and shall also be true, correct and complete in all
material respects at and as of the Post-Closing Date, with the same force and
effect as if made at and as of the Post-Closing Date. The Company shall have
performed and complied in all material respects with all agreements and
covenants required by this Agreement to be performed by the Company and
Acquisition at or prior to the Post-Closing Date.
(f) Delivery of Certificate. (A) The Company shall have delivered to
BP a certificate, in the form of Exhibit 6.1(f) annexed hereto, dated the
Post-Closing Date, and signed by the CEO of the Company affirming that the
representations and warranties as set forth in Section 4.1 were and are true,
correct and complete as required by Section 6.1(e) and (B) Acquisition shall
have delivered to BP a certificate, in the form of Exhibit 6.1(h) annexed
hereto, dated the Post-Closing Date, and signed by the CEO of Acquisition
affirming that the representations and warranties as set forth in Section 4.1
were and are true, correct and complete as required by Section 6.1(e).
(g) Consents and Waivers. At the Post-Closing, any and all necessary
consents, authorizations, orders or approvals shall have been obtained, except
as the same shall have been waived by the BP Debenture Holder.
(h) Litigation. On the Post-Closing Date, there shall be no
effective injunction, writ or preliminary restraining order or any order of any
kind whatsoever with respect to the Company issued by a court or governmental
agency (or other governmental or regulatory authority) of competent jurisdiction
restraining or prohibiting the consummation of the Contemplated Transactions or
making consummation thereof unduly burdensome to BP. On the Post-Closing Date
and immediately prior to
consummation of the Contemplated Transactions, no proceeding or lawsuit shall
have been commenced, be pending or have been threatened by any governmental or
regulatory agency or authority or any other Person with respect to the
Contemplated Transactions.
(i) Delivery of Documents and Other Information. Prior to the
Post-Closing Date, the Company and Acquisition shall have made available or
delivered to BP all of the agreements, contracts, documents and other
instruments required to be delivered pursuant to the provisions of this
Agreement.
6.2 Conditions to Obligations of the Company and Acquisition. The
obligations of the Company and Acquisition to consummate the Contemplated
Transactions are subject to the fulfillment of each of the following conditions:
(a) Copies of Resolutions. At the Post-Closing, BP shall have
furnished the Company with a certificate of its President, in the form of
Exhibit 6.2(a) annexed hereto, certifying that attached thereto are copies of
resolutions duly adopted by the board of directors of BP authorizing the
execution, delivery and performance of the terms of this Agreement and all other
necessary or proper corporate action to enable BP to comply with the terms of
this Agreement.
(b) Opinion of BP's Counsel. BP shall have furnished to the Company,
at the Post-Closing, with an opinion of counsel to BP, dated as of the
Post-Closing Date, substantially in the form of Exhibit 6.2(b) annexed hereto.
(c) Opinion of BP's Counsel. BP shall have furnished to the Company,
at the Closing, with an opinion of the special securities counsel the Company
dated as of the Post-Closing Date, substantially in the form of Exhibit 6.2(c)
annexed hereto.
(d) Accuracy of Representations and Warranties; Performance of
Covenants. Each of the representations and warranties of BP was true, correct
and complete in all material respects when made and shall also be true, correct
and complete in all material respects at and as of the Post-Closing Date, with
the same force and effect as if made at and as of the Post-Closing Date. BP
shall have performed and complied in all material respects with all agreements
and covenants required by this Agreement to be performed by BP at or prior to
the Post-Closing Date.
(e) Delivery of Certificate. BP shall have delivered to the Company
a certificate, in the form of Exhibit 6.2(e) annexed hereto, dated the
Post-Closing Date and signed by the President of BP, affirming that the
representations and warranties of BP as set forth in Section 4.2 were and are
true, correct and complete and BP's agreements and covenants have been performed
as required by Section 6.2(d).
(f) Compliance with Rule 504. In connection with the issuance of the
Securities by BP under the Purchase Agreement, on or prior to the Post-Closing
Date BP shall be in full compliance with Rule 504 of Regulation D of the
Securities Act of 1933, as amended, and BP shall have delivered to the Company
at the Post-Closing a filed copy of the Form D required to be filed with the SEC
in connection therewith.
(g) Consents and Waivers. On or prior to the Post-Closing Date, any
and all necessary consents, authorizations, orders or approvals shall have been
obtained, except as the same shall have been waived by the Company.
(h) Litigation. On the Post-Closing Date, there shall be no
effective injunction, writ or preliminary restraining order or any order of any
kind whatsoever with respect to BP issued by a court or governmental agency (or
other governmental or regulatory authority) of competent jurisdiction
restraining or prohibiting the consummation of the Contemplated Transactions or
making the consummation thereof unduly burdensome to the Company or BP. On the
Post-Closing Date, no proceeding or lawsuit shall have been commenced,
threatened or be pending or by any governmental or regulatory agency or
authority or any other person with respect to the Contemplated Transactions.
(i) Delivery of Documents and Other Information. Prior to the
Post-Closing Date, BP shall have made available or delivered to the Company all
of the agreements, contracts, documents and other instruments required to be
delivered pursuant to the provisions of this Agreement.
(j) Investment Undertaking. Prior to the Post-Closing, BP shall have
delivered to the Company an undertaking, in form and substance reasonably
satisfactory to the Company, duly executed by each of the stockholders of BP
pursuant to which each such stockholder (i) certifies that he is an "accredited
investor" (within the meaning of Regulation D of the Securities Act of 1933, as
amended), (ii) undertakes to acquire the Company Common Stock Shares to be
acquired by such stockholder pursuant to this Agreement for his own account, for
investment, (iii) agrees that such shares are "restricted securities" and that
he will not sell, assign, transfer or otherwise dispose of any of such shares,
or any interest therein, except in compliance with the registration requirements
of all applicable federal and state securities laws, and (iv) acknowledges that
the certificates representing such shares will bear an appropriate legend
reflecting the foregoing.
ARTICLE VII
TERMINATION
7.1 Termination by Mutual Agreement. This Agreement may be
terminated at any time by mutual consent of the parties hereto, provided that
such consent to terminate is in writing and is signed by each of the parties
hereto.
7.2 Termination for Failure to Close. This Agreement shall be
automatically terminated if the Closing shall not have occurred within ten (10)
days of the date hereof (except if such 10th day is not a Business Day, then the
next Business Day).
7.3 Termination by Operation of Law. This Agreement may be
terminated by any party hereto if there shall be any statute, rule or regulation
that renders
consummation of the Contemplated Transactions illegal or otherwise prohibited,
or a court of competent jurisdiction or any government (or governmental
authority) shall have issued an order, decree or ruling, or has taken any other
action restraining, enjoining or otherwise prohibiting the consummation of such
transactions and such order, decree, ruling or other action shall have become
final and nonappealable.
7.4 Termination for Failure to Perform Covenants or Conditions. This
Agreement may be terminated prior to the Post-Closing Date:
(a) by BP if: (i) any of the representations and warranties made in
this Agreement by the Company or Acquisition shall not be materially true and
correct, when made or at any time prior to consummation of the Contemplated
Transactions as if made at and as of such time; (ii) any of the conditions set
forth in Section 6.1 hereof have not been fulfilled in all material respects by
the Post-Closing Date; (iii) the Company or Acquisition shall have failed to
observe or perform any of its material obligations under this Agreement; or (iv)
as otherwise set forth herein; or
(b) by the Company or Acquisition if: (i) any of the representations
and warranties of BP shall not be materially true and correct when made or at
any time prior to consummation of the Contemplated Transactions as if made at
and as of such time; (ii) any of the conditions set forth in Section 6.2 hereof
have not been fulfilled in all material respects by the Post-Closing Date; (iii)
BP shall have failed to observe or perform any of their material respective
obligations under this Agreement; or (iv) as otherwise set forth herein.
7.5 Effect of Termination or Default; Remedies. In the event of
termination of this Agreement as set forth above, this Agreement shall forthwith
become void and there shall be no liability on the part of any party hereto,
provided that such party is a Non-Defaulting Party (as defined below). The
foregoing shall not relieve any party from liability for damages actually
incurred as a result of such party's breach of any term or provision of this
Agreement.
7.6 Remedies; Specific Performance. In the event that any party
shall fail or refuse to consummate the Contemplated Transactions or if any
default under or beach of any representation, warranty, covenant or condition of
this Agreement on the part of any party (the "Defaulting Party") shall have
occurred that results in the failure to consummate the Contemplated
Transactions, then in addition to the other remedies provided herein, the
non-defaulting party (the "Non-Defaulting Party") shall be entitled to seek and
obtain money damages from the Defaulting Party, or may seek to obtain an order
of specific performance thereof against the Defaulting Party from a court of
competent jurisdiction, provided that the Non-Defaulting Party seeking such
protection must file its request with such court within forty-five (45) days
after it becomes aware of the Defaulting Party's failure, refusal, default or
breach. In addition, the Non-Defaulting Party shall be entitled to obtain from
the Defaulting Party court costs and reasonable attorneys' fees incurred in
connection with or in pursuit of enforcing the rights and remedies provided
hereunder.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.1 Survival of Representations and Warranties of the Company. All
representations and warranties of the Company shall survive the execution and
delivery of this Agreement and the Post-Closing hereunder and shall thereafter
continue in full force and effect until the earlier of (i) the second
anniversary of the Post-Closing Date and (ii) the BP Debenture has been fully
converted and shall then terminate except to the extent that notice of the
Company's or Acquisition liability in respect of any inaccuracy in or breach of
any representation or warranty shall have been given on or prior to such second
anniversary.
8.2 Survival of Representations and Warranties of BP. All
representations and warranties of BP shall terminate upon the Closing except to
the extent that notice of BP's liability in respect of any inaccuracy in or
breach of any representation or warranty shall have been given on or prior to
Closing.
8.3 Obligation of the Company to Indemnify. The Company agrees to
indemnify, defend and hold harmless BP (and its directors, officers, employees,
affiliates, shareholders, debenture holders, agents, attorneys, successors and
assigns) from and against all losses, liabilities, damages, deficiencies, costs
or expenses (including interest, penalties and reasonable attorneys' and
consultants' fees and disbursements) (collectively, "Losses") based upon,
arising out of or otherwise in respect of any (i) inaccuracy in any
representation or warranty of the Company contained in this Agreement or in the
Schedules and Exhibits hereto or (ii) breach by the Company of any covenant or
agreement contained in this Agreement.
8.4 Obligation of and BP to Indemnify. BP agrees to indemnify,
defend and hold harmless the Company (and its directors, officers, employees,
affiliates, shareholders, agents, attorneys, successors and assigns) from and
against any Losses based upon, arising out of or otherwise in respect of any (i)
inaccuracy in any representation or warranty of BP contained in this Agreement
or (ii) breach by BP of any covenant or agreement contained in this Agreement.
8.5 Notice and Opportunity to Defend. (a) Promptly after receipt by
any Person entitled to indemnity under this Agreement (an "Indemnitee") of
notice of any demand, claim or circumstances which, with the lapse of time,
would or might give rise to a claim or the commencement (or threatened
commencement) of any action, proceeding or investigation (an "Asserted
Liability") that may result in a Loss, the Indemnitee shall give notice thereof
(the "Claims Notice") to any other party (or parties) who is or may be obligated
to provide indemnification pursuant to Section 8.3 or 8.4 (the "Indemnifying
Party"). The Claims Notice shall describe the Asserted Liability in reasonable
detail and shall indicate the amount (estimated, if necessary and to the extent
feasible) of the Loss that has been or may be suffered by the Indemnitee.
(b) The Indemnifying Party may elect to compromise or defend, at its
own expense and by its own counsel, any Asserted Liability. If the Indemnifying
Party elects to compromise or defend such Asserted Liability, it shall within 30
days after the date the Claims Notice is given (or sooner, if the nature of the
Asserted Liability so requires) notify the Indemnitee of its intent to do so,
and the Indemnitee shall cooperate, at the expense of the Indemnifying Party, in
the compromise of, or defense against, such Asserted Liability. If the
Indemnifying Party elects not to compromise or defend the Asserted Liability,
fails to notify the Indemnitee of its election as herein provided or contests
its obligation to indemnify under this Agreement, the Indemnitee may pay,
compromise or defend such Asserted Liability and all reasonable expenses
incurred by the Indemnitee in defending or compromising such Asserted Liability,
all amounts required to be paid in connection with any such Asserted Liability
pursuant to the determination of any court, governmental or regulatory body or
arbitrator, and amounts required to be paid in connection with any compromise or
settlement consented to by the Indemnitee, shall be borne by the Indemnifying
Party. Except as otherwise provided in the immediately preceding sentence, the
Indemnitee may not settle or compromise any claim over the objection of the
Indemnifying Party. In any event, the Indemnitee and the Indemnifying Party may
participate, at their own expense, in (but the Indemnitee may not control) the
defense of such Asserted Liability. If the Indemnifying Party chooses to defend
any claim, the Indemnitee shall make available to the Indemnifying Party any
books, records or other documents within its control that are necessary or
appropriate for such defense.
ARTICLE IX
DEFINITIONS
The following terms, which are capitalized in this Agreement, shall
have the meanings set forth below for the purpose of this Agreement.
"Applicable Contract" means any Contract (a) under which the Company
has or may acquire any rights, (b) under which the Company or BP, as the case
may be, has or may become subject to any obligation or liability or (c) by which
the Company or BP, as the case may be, or any of the assets owned or used by it
is or may become bound.
"Contemplated Transactions" means all of the transactions
contemplated by this Agreement, including, without limitation:
(1) the Merger; and
(2) the performance by the parties of their respective covenants and
obligations under this Agreement.
"Environmental Laws" means all applicable federal, state, local or
foreign laws, rules and regulations, orders, decrees, judgments, permits,
filings and licenses relating (i) to protection and clean-up of the environment
and activities or conditions related thereto, including those relating to the
generation, handling, disposal,
transportation or release of hazardous substances and (ii) the health or safety
of employees in the workplace environment, all as amended from time to time, and
shall also include any common law theory based on nuisance, trespass, negligence
or other tortious conduct.
"ERISA" means the Employee Retirement Income Security Act of 1974 or
any successor law, and regulations and rules issued pursuant to such law or any
successor law.
"GAAP" means generally accepted accounting principles in the United
States, applied on a consistent basis.
"Law" means all applicable laws, statutes, ordinances, rules,
regulations, orders, writs, injunctions, judgments or decrees entered, enacted,
promulgated, enforced or issued by any court or other governmental or regulatory
authority, domestic or foreign.
"Legal Requirement" means any federal, state, local, municipal,
foreign, international, multinational or other administrative law, ordinance,
principle of common law, regulation, statute, treaty, court or arbitrator.
"Order" means any award, decision, injunction, judgment, order,
ruling, subpoena or verdict entered, issued, made or rendered by any court,
administrative agency or other governmental body or by any arbitrator.
"Ordinary Course of Business" means an action taken by a Person
where:
(1) such action is consistent with the past practices of such Person
and is taken in the ordinary course of the normal day-to-day operations of such
Person;
(2) such action is not required to be authorized by the board of
directors of such Person (or by any Person or group of Persons exercising
similar authority); and
(3) such action is similar in nature and magnitude to actions
customarily taken, without any authorization by the board of directors (or by
any Person or group of Persons exercising similar authority), in the ordinary
course of the normal day-to-day operations of other Persons that are in the same
line of business as such Person.
"Organizational Documents" means the articles or certificate of
incorporation and the by-laws of a corporation and any amendment thereto.
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union or other entity
or governmental body.
"Proceeding" means any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal, administrative,
investigative or informal)
commenced, brought, conducted or heard by or before, or otherwise involving, any
governmental body or arbitrator.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE X
MISCELLANEOUS
10.1 Fees and Expenses. Except as otherwise provided in this
Agreement, each party hereto will bear its own legal, accounting and other fees
and expenses incident to the Contemplated Transactions herein. Any fees and
expenses required to be paid by any party hereunder shall be limited to
reasonable and necessary fees and expenses
10.2 Modification, Amendments and Waiver. The parties hereto may
amend, modify or otherwise waive any provision of this Agreement by mutual
consent, provided that such consent and any amendment, modification or waiver is
in writing and is signed by each of the parties hereto.
10.3 Assignment. Neither the Company nor BP shall have the authority
to assign its respective rights or obligations under this Agreement without the
prior written consent of the BP Debenture Holder.
10.4 Successors. This Agreement shall be binding upon and, to the
extent permitted in this Agreement, shall inure to the benefit of the parties
and their respective successors and permitted assigns.
10.5 Entire Agreement. This Agreement and the exhibits, schedules
and other documents referred to herein contain the entire agreement among the
parties hereto with respect to the Contemplated Transactions and supersede all
prior agreements with respect thereto, whether written or oral.
10.6 Governing Law. This Agreement and the exhibits hereto shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to principles of conflicts or choice of laws thereof. Any
action to enforce the terms of this Agreement or any of its exhibits shall be
brought exclusively in the state and/or federal courts situate in the County and
State of New York. Service of process in any action by either party to enforce
the terms of this Agreement may be made by serving a copy of the summons and
complaint, in addition to any other relevant documents, by commercial overnight
courier to the other party at its principal address set forth in this Agreement.
10.7 Notices. Any notice, request, demand, waiver, consent,
approval, or
other communication which is required or permitted to be given to any party
hereunder shall be in writing and shall be deemed given only if delivered to the
party personally or sent to the party by telecopy (promptly followed by a
hard-copy delivered in accordance with this Section 10.7) or by registered or
certified mail (return receipt requested), with postage and registration or
certification fees thereon prepaid, addressed to the party at its address set
forth below:
If to BP: Brooklyn Pastry Inc.
x/x Xxxxxxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Acquisition: BP Acquisition, Inc.
c/o Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Company: Columbia Bakeries, Inc.
000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Rounsevelle X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to: Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Gottbetter & Partners, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx X. Xxxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other persons or addresses as may be designated in writing by the
party to receive such notice. If mailed as aforesaid, the day of mailing or
transmission shall be the date any such notice shall be deemed to have been
delivered.
10.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which shall
constitute but one agreement. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
10.9 Rights Cumulative. All rights, powers and privileges conferred
hereunder upon the parties, unless otherwise provided, shall be cumulative and
shall not be restricted to those given by law. Failure to exercise any power
given any party hereunder or to insist upon strict compliance by any other party
shall not constitute a waiver of any party's right to demand exact compliance
with any of the terms or provisions hereof.
10.10 Severability of Provisions. The provisions of this Agreement
shall be considered severable in the event that any of such provisions are held
by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable. Such invalid, void or otherwise unenforceable provisions shall be
automatically replaced by other provisions which are valid and enforceable and
which are as similar as possible in term and intent to those provisions deemed
to be invalid, void or otherwise unenforceable. Notwithstanding the foregoing,
the remaining provisions hereof shall remain enforceable to the fullest extent
permitted by law.
10.11 Headings. The headings set forth in the articles and sections
of this Agreement and in the exhibits and the schedules to this Agreement are
inserted for convenience of reference only and shall not be deemed to constitute
a part hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date and year first above written.
COLUMBIA BAKERIES, INC.
By: /s/ Rounsevelle X. Xxxxxx
----------------------------------
Rounsevelle X. Xxxxxx, President
and CEO
BP ACQUISITION, INC.
By: /s/ Rounsevelle X. Xxxxxx
----------------------------------
Rounsevelle X. Xxxxxx, President
and CEO
BROOKLYN PASTRY INC.
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxx,
President
