AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger (the "Agreement"), dated January __, 2005,
by and between United Heritage Corporation, a Utah corporation (the "UHCP"),
National Heritage Sales Corp., a wholly-owned Texas subsidiary of UHCP ("NHSC"),
and Heritage Food Group, Inc., a wholly owned Delaware subsidiary of UHCP (the
"Subsidiary Corporation"), and BMW Holdings, Inc., a Delaware corporation
("BMW").
RECITALS
The Boards of Directors of each of the parties have determined that the
merger provided for herein is in the best interests of their respective
companies and stockholders and an opportunity for their respective companies to
achieve long-term strategic and financial benefits, and, accordingly, have
agreed to effect the merger provided for herein upon the terms and subject to
the conditions set forth herein.
A purpose of BMW entering into this Agreement is to increase its
shareholder base;
The parties desire to make certain representations, warranties and
agreements in connection with the merger.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
The Merger
1.1 The Merger. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in Section 1.3), Subsidiary Corporation shall
be merged with and into BMW in accordance with this Agreement and the separate
corporate existence of Subsidiary Corporation shall thereupon cease (the
"Merger"). BMW shall be the surviving corporation in the Merger (sometimes
hereinafter referred to as the "Surviving Corporation"). The Merger shall have
the effects specified in the Delaware General Corporation Law (the "DGCL").
1.2 The Closing. Subject to the terms and conditions of this Agreement,
the closing of the Merger (the "Closing") shall take place at Law Offices of ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 a.m., local
time, on the first business day immediately following the day on which the last
to be fulfilled or waived of the conditions set forth in Article 8 shall be
fulfilled or waived in accordance herewith, or at such other time, date or place
as the parties may agree. The date on which the Closing occurs is hereinafter
referred to as the "Closing Date."
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1.3 Effective Time. If all the conditions to the Merger set forth in
Article 8 shall have been fulfilled or waived in accordance herewith and this
Agreement shall not have been terminated as provided in Article 9, the parties
hereto shall cause a Certificate of Merger meeting the requirements of Section
251 of the DGCL to be properly executed and filed in accordance with such
Section on the Closing Date. The Merger shall become effective at the time of
filing of the Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with the DGCL or at such later time which the parties
hereto shall have agreed upon and designated in such filing as the effective
time of the Merger (the "Effective Time").
ARTICLE 2
Certificate of Incorporation and Bylaws of the Surviving Corporation.
2.1 The Certificate of Incorporation of BMW in effect immediately prior
to the Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation, until duly amended in accordance with applicable law.
2.2 The Bylaws of BMW in effect immediately prior to the Effective Time
shall be the Bylaws of the Surviving Corporation, until duly amended in
accordance with applicable law.
ARTICLE 3
Directors and Officers of the Surviving Corporation
3.1 The directors of BMW immediately prior to the Effective Time shall
be the directors of the Surviving Corporation as of the Effective Time.
3.2 The officers of BMW immediately prior to the Effective Time shall
be the officers of the Surviving Corporation as of the Effective Time.
ARTICLE 4
Conversion of Stock, Payment, Distribution and Reorganization
4.1 Conversion of Stock.
(a) At the Effective Time, all of the equity ownership of
Subsidiary Corporation outstanding immediately prior to the Effective Time, all
of which is held by UHCP, shall be exchanged for an aggregate of 810,811 shares
of Class A common stock of the Surviving Corporation, representing 7.5% of the
shares of Surviving Corporation outstanding immediately following such issuance.
(b) At the Effective Time, all of the equity of BMW issued and
outstanding immediately prior to the Effective Time shall remain issued and
outstanding without change, and shall represent 92.5% of the shares of Surviving
Corporation outstanding immediately following such issuance.
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(c) Any and all rights to acquire shares of Subsidiary
Corporation and shares held in treasury at the Effective Time shall, by virtue
of the Merger, cease to be outstanding and shall be cancelled and retired
without payment of any consideration therefor.
(d) Except for rights pursuant to Section 5.17, any and all
rights to acquire shares of BMW and shares held in treasury at the Effective
Time shall, by virtue of the Merger, cease to be outstanding and shall be
cancelled and retired without payment of any consideration therefor.
4.2 Cash Payment; Legal Fees
Surviving Corporation shall pay to UHCP the sum of $75,000 payable in
twelve equal monthly installments of $6,250, beginning thirty days after the
Closing Date. Immediately prior to the Effective Time, Surviving Corporation
shall pay directly to UHCP's legal counsel by wire transfer all reasonable legal
fees and expenses incurred by UHCP and Subsidiary Corporation in connection with
this Agreement and the transactions contemplated hereby and the Reorganization.
4.3 Distribution
Surviving Corporation will use its best reasonable efforts to file and
cause to become effective as soon as reasonably practicable following the
Effective Time a registration statement with the Securities and Exchange
Commission for the resale of all the issued and outstanding shares of Surviving
Corporation held by UHCP and/or its distributees and/or those shares issuable
pursuant to Section 5.17. UHCP shall authorize a stock distribution of its
shares of Surviving Corporation on a pro rata basis to its shareholders, which
is approximately 4,444 shareholders of record presently, and shall not be less
than 2,750 at such time of distribution. UHCP shall take all necessary steps to
obtain the approval for such stock distribution prior to the Closing Date, to
declare and make such stock distribution, which stock distribution shall be
subject only to the effectiveness of the related registration statement. UHCP
shall provide to Surviving Corporation a list of such distributees, including
names, addresses, and number of shares distributed to each distributee. To the
extent shares of UHCP are held by objecting beneficial holders, UHCP shall
provide Surviving Corporation a list of brokers, including names, addresses, and
number of shares to be distributed to each such beneficial holder. All actions
to be performed by UHCP in connection with such stock distribution shall be
completed no later than thirty days following the effectiveness of such
registration statement.
4.4 Reorganization
UHCP, NHSC and Subsidiary Corporation have entered into transactions
immediately prior to the Merger, whereby all of the assets of NHSC (other than
the `CD 6000 Multivac", all receivables and inventory of NHSC immediately
preceding the Closing Date, and the existing lawsuit styled National Heritage
Sales Corporation v. ▇▇▇▇ ▇▇▇▇▇▇ and M.C. Development, LLC, Case No. C200200451,
249th Judicial District, ▇▇▇▇▇▇▇ County, Texas, filed on September 20, 2002) and
none of the liabilities of NHSC have been transferred to Subsidiary Corporation
(the "Reorganization"). A copy of the executed Reorganization Agreement,
including any and all Exhibits and deliverables pursuant to the Reorganization,
is annexed hereto as Exhibit A.
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UHCP and NHSC shall, jointly and severally, indemnify Surviving
Corporation and BMW from any and all successor liability claims that may be
asserted or claimed by current, former or future creditors, claimants, vendors
or otherwise of NHSC and/or UHCP relating to any lawsuit, claim, loan,
obligation, liability and/or indebtedness whatsoever of NHSC and/or UHCP,
including, but not limited to, the existing lawsuit styled ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ v.
National Heritage Sales Corp., Case ▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, filed on April 9, 2003.
ARTICLE 5
Representations and Warranties of BMW
BMW represents and warrants to UHCP, NHSC and Subsidiary Corporation as
of the date of this Agreement as follows:
5.1 Existence; Good Standing; Corporate Authority; Compliance With Law.
BMW is a corporation duly incorporated, validly existing and in good standing
under the laws of Delaware. BMW is duly licensed or qualified to do business as
a foreign corporation and is in good standing under the laws of any other state
of the United States in which the character of the properties owned or leased by
it therein or in which the transaction of its business makes such qualification
necessary, except where the failure to be so licensed or qualified or be in good
standing would not have, individually or in the aggregate, a material adverse
effect on the business, results of operations or financial condition of BMW and
its Subsidiary taken as a whole (a "BMW Material Adverse Effect"). BMW has all
requisite corporate power and authority to own, operate and lease its properties
and carry on its business as now conducted. BMW's sole Subsidiary is a limited
liability company p duly organized, validly existing and in good standing under
the laws of Delaware has the company power and authority to own its properties
and to carry on its business as it is now being conducted, and is duly licensed
or qualified to do business and is in good standing in each jurisdiction in
which the ownership of its property or the conduct of its business requires such
qualification, except for jurisdictions in which such failure to be so licensed
or qualified or to be in good standing would not reasonably be expected to have,
individually or in the aggregate, a BMW Material Adverse Effect. Neither BMW nor
its Subsidiary is in violation of any order of any court, governmental authority
or arbitration board or tribunal, or any law, ordinance, governmental rule or
regulation to which BMW or its Subsidiary or any of their respective properties
or assets is subject, except where such violation would not have, individually
or in the aggregate, a BMW Material Adverse Effect. BMW and its Subsidiary have
obtained all licenses, permits and other authorizations and have taken all
actions required by applicable law or governmental regulations in connection
with their business as now conducted, where the failure to obtain any such item
or to take any such action would have a BMW Material Adverse Effect.
5.2 Authorization, Validity, and Effect of Agreements. BMW has the
requisite corporate power and authority to execute and deliver this Agreement
and all agreements and documents contemplated hereby. The Board of Directors and
a majority of the outstanding shares of BMW have authorized the execution of
this Agreement and the consummation of transactions contemplated herein. The
consummation by BMW of the transactions contemplated hereby has been duly
authorized by all requisite corporate action. This Agreement constitutes, and
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all agreements and documents contemplated hereby (when executed and delivered
pursuant hereto for value received) will constitute, the valid and legally
binding obligations of BMW, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of equity. The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby will not, violate any provision of BMW's
charter or by-laws, or, to its best knowledge, any mortgage, lien lease,
agreement, instrument, order, judgment or decree to which BMW is bound, and will
not violate any other material restriction of any kind or character to which BMW
is subject. This Agreement is a legal, valid and binding obligation of BMW and
is enforceable in accordance with its terms and conditions, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement or creditors' rights or general
equitable principles.
5.3 Capitalization. The authorized capital stock of BMW consists of
200,000,000 shares, par value $0.000001, divided into three classes: 170,000,000
shares are Class A common stock, 20,000,000 shares are Class B common stock, and
10,000,000 shares are "blank check" preferred stock. As of January __, 2005,
there were 3,500,000 shares of Class A common stock and 6,500,000 shares of
Class B common stock issued and outstanding. There is no preferred stock issued
or outstanding. Except as set forth in Schedule 5.3, there are no outstanding
subscriptions, options, rights, debentures, instruments, convertible securities
or other agreements, commitments or obligations of BMW to issue or to transfer
from treasury any additional shares of its capital stock of any class. BMW has
no outstanding bonds, debentures, notes or other obligations the holders of
which have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the stockholders of BMW on any matter.
All such issued and outstanding shares of BMW Common Stock are duly authorized,
validly issued, fully paid, and nonassessable. Certain preemptive rights have
been granted pursuant to a Shareholders' Agreement.
5.4 Subsidiaries. The sole Subsidiary of BMW is BMW Meats LLC. BMW owns
directly all of the outstanding equity of BMW Meats LLC. Each of the outstanding
membership interests of BMW Meats LLC is duly authorized, validly issued, fully
paid and nonassessable, and is owned, directly or indirectly, by BMW free and
clear of all liens, pledges, security interests, claims or other encumbrances.
5.5 Other Interests. Except for interests in the BMW Subsidiary,
neither BMW nor any BMW Subsidiary owns directly or indirectly any interest or
investment (whether equity or debt) in any corporation, partnership, joint
venture, business, trust or entity.
5.6 Financial Statements. BMW has delivered to the other parties its
unaudited financial statements as of October 31, 2004, appended hereto as
Schedule 5.6. Such financial statements are materially correct.
5.7 Absence of Changes. Since the date of BMW's most recent financial
statements, except as disclosed in Schedule 5.7, each of BMW and its Subsidiary
has conducted its business only in the ordinary course of such business and
there has not been (i) any event or changes with respect to BMW and its
Subsidiary having, individually or in the aggregate, a BMW Material Adverse
Effect, (ii) any declaration, setting aside or payment of any dividend or other
distribution with respect to its capital stock, or (iii) any material change in
its accounting principles, practices or methods.
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5.8 Absence of Undisclosed Liabilities. As of the date of BMW's most
recent balance sheet, except in the ordinary course of such business, or as
disclosed in Schedule 5.7, BMW has not had any material debt, liability or
obligation of any nature, whether accrued, absolute, contingent or otherwise,
and whether due or to become due, that is not reflected in such balance sheet.
5.9 Tax Returns. Within the times and in the manner prescribed by law,
BMW and each BMW Subsidiary have filed all federal, state and local tax returns
required by law and have paid all taxes, assessments and penalties due and
payable. There are no present disputes as to the taxes of any nature payable by
BMW.
5.10 Intellectual Property. To the best of its knowledge, BMW owns and
holds all necessary franchise rights, trademarks, service marks, trade names,
inventions, processes, know-how, trade secrets, copyrights, licenses and other
rights necessary to its business as now conducted or proposed to be conducted.
To the best of its knowledge, BMW is not infringing upon or otherwise acting
adversely to the right or claimed right of any person with respect to any of the
foregoing.
5.11 Litigation. Except as set forth in Schedule 5.11, there are no
actions, suits or proceedings pending against BMW or the BMW Subsidiary or, to
the knowledge of BMW, threatened against BMW or the BMW Subsidiary any of their
respective properties or assets, at law or in equity, or before or by any
federal or state commission, board, bureau, agency or instrumentality, that
would have, individually or in the aggregate, a BMW Material Adverse Effect or
would prevent or delay, in any internal report, the consummation of the
transactions contemplated by this Agreement. Except as set forth in Schedule
5.11, neither BMW nor its Subsidiary are subject to any outstanding order, writ,
injunction or decree which, insofar as can be reasonably foreseen, individually
or in the aggregate, in the future would have a BMW Material Adverse Effect or
would prevent or delay the consummation of the transactions contemplated hereby.
5.12 Assets. BMW has good and marketable title to all of its property,
free and clear of all liens, claims and encumbrances.
5.13 Material Contracts. BMW has no material contracts, except as set
forth in Schedule 5.13.
5.14 Indemnification. As a further inducement to UHCP to consummate the
transaction contemplated by this Agreement, BMW shall indemnify, defend and hold
harmless UHCP and its officers and directors from, against, for and in respect
of any and all losses, costs, damages, fines, penalties, expenses and
liabilities, including, interest which may be imposed in connection therewith,
reasonable attorneys' fees (hereinafter referred to as a "Loss") suffered,
sustained or incurred by UHCP as a result of, arising out of, or in connection
with any breach of any representation, covenant or agreement made or to be
performed by BMW pursuant to this Agreement. BMW's obligations under this
Section 5.14 shall survive for a period of two (2) years after the consummation
of the transaction contemplated by this Agreement.
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5.15 Indemnification of Officers and Directors. The parties acknowledge
and agree that prior to the execution of this Agreement, each corporate party
hereto had separately adopted resolutions and by-laws affording indemnification,
to the fullest extent permitted by law, of all officers, directors, promoters,
attorneys and other responsible persons, past or present, for any liability
which arises out of or pertains to any action or omission taken in good faith
while serving in such capacity on behalf of their respective corporations. The
parties hereby agree that each shall, to the fullest extent permitted by law,
retain and maintain such indemnification provisions with respect to its officers
and directors and that each party shall hereafter continuously maintain the
fullest indemnification of officers and directors as permitted by law. Nothing
herein shall be deemed to diminish or otherwise restrict UHCP's rights to
indemnification under any provision of BMW's certificate of incorporation or
by-laws, under Delaware law and under other terms and provisions of this
Agreement.
5.16 Environmental Laws and Regulations.
(a) BMW and its Subsidiary is in compliance with all applicable
federal, state and local laws and regulations relating to pollution or
protection of human health or the environment (collectively, "Environmental
Laws") which compliance includes, but is not limited to, the possession by BMW
and its Subsidiary of all material permits and other governmental authorizations
required under applicable Environmental Laws, and compliance with the terms and
conditions thereof, except for non-compliance that would not have, individually
or in the aggregate, a BMW Material Adverse Effect. Neither BMW nor its
Subsidiary has received written notice of, or, to the knowledge of BMW, is the
subject of, any action, cause of action, claim, investigation, demand or notice
by any person or entity alleging liability under or non-compliance with any
Environmental Law (an "Environmental Claim") that would have, individually or in
the aggregate, a BMW Material Adverse Effect. To the knowledge of BMW, there are
no circumstances that are reasonably likely to prevent or interfere with such
material compliance in the future.
(b) There are no Environmental Claims which would have, individually
or in the aggregate, a BMW Material Adverse Effect that are pending or, to the
knowledge of BMW, threatened against BMW or its Subsidiary or, to the knowledge
of BMW, against any person or entity whose liability for any Environmental Claim
BMW or its Subsidiary has or may have retained or assumed either contractually
or by operation of law.
5.17 No Brokers. BMW has not entered into any contract, arrangement or
understanding with any person or firm which may result in the obligation of BMW
or UHCP, NHSC or Subsidiary Corporation to pay any finder's fees, brokerage or
agent's commissions or other like payments in connection with the negotiations
leading to this Agreement or the consummation of the transactions contemplated
hereby, except that BMW has retained Crusader Investments, LLC as its financial
advisor. BMW shall be responsible to pay any and all fees, costs and expenses of
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Crusader Investments, LLC relating to the Merger and the related Reorganization.
The agreement with Crusader Investments, LLC provides, in addition to any cash
fees, that, at the time Surviving Corporation becomes a public company,
including pursuant to the filing of the registration statement described in
Section 4.3, Crusader Securities, LLC, as an assignee of Crusader Investments,
LLC, shall be paid a 7.5% interest in the Surviving Corporation (based on the
outstanding at such time); such shares are to be registered for resale. Except
as provided in this Section 5.17, BMW is not aware of any claim for payment of
any finder's fees, brokerage or agent's commissions or other like payments in
connection with the negotiations leading to this Agreement or the consummation
of the transactions contemplated hereby.
5.18 Full Disclosure. None of the representations and warranties made
by BMW herein or in any Exhibit, Schedule, certificate or memorandum furnished
by BMW, or on its behalf, contains or will contain any untrue statement of
material fact or omit any material fact which would cause such exhibit,
schedule, certificate or memorandum to be materially misleading.
5.19 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations of BMW contained herein,
UHCP, its legal counsel and accountants shall have had the opportunity to meet
with BMW, its legal counsel and accountants to discuss the financial condition
of BMW. BMW shall have made available to UHCP all books and records of BMW. BMW
specifically represents that it has, and shall have through the closing hereof,
no material debts, obligations, liabilities or claims against it, other than
those set forth in Schedules 5,6, 5.7, 5.11, 5.12 and 5.13.
ARTICLE 6
Representations and Warranties of UHCP, NHSC and Subsidiary Corporation
UHCP, NHSC and Subsidiary Corporation represent and warrant to BMW as
of the date of this Agreement as follows:
6.1 Existence; Good Standing; Corporate Authority; Compliance With Law.
Each of UHCP, NHSC and Subsidiary Corporation is a corporation duly
incorporated, validly existing and in good standing under the laws of Utah,
Texas and Delaware, respectively. Each of UHCP, NHSC and Subsidiary Corporation
is duly licensed or qualified to do business as a foreign corporation and is in
good standing under the laws of any other state of the United States in which
the character of the properties owned or leased by it therein or in which the
transaction of its business makes such qualification necessary, except where the
failure to be so licensed or qualified or be in good standing would not have,
individually or in the aggregate, a material adverse effect on the business,
results of operations or financial condition of NHSC and Subsidiary Corporation
and their respective Subsidiaries taken as a whole (a "NHSC Material Adverse
Effect"). Each of UHCP, NHSC and Subsidiary Corporation has all requisite
corporate power and authority to own, operate and lease its properties and carry
on its business as now conducted. Each of the Subsidiaries of UHCP, NHSC and
Subsidiary Corporation is a corporation, limited liability company or
partnership duly organized, validly existing and in good standing under the laws
of its respective jurisdiction of incorporation, formation or organization, has
the corporate, company or partnership power and authority to own its properties
and to carry on its business as it is now being conducted, and is duly licensed
or qualified to do business and is in good standing in each jurisdiction in
which the ownership of its property or the conduct of its business requires such
qualification, except for jurisdictions in which such failure to be so licensed
or qualified or to be in good standing would not reasonably be expected to have,
individually or in the aggregate, a NHSC Material Adverse Effect. Neither UHCP,
NHSC or Subsidiary Corporation nor any of its Subsidiaries is in violation of
any order of any court, governmental authority or arbitration board or tribunal,
or any law, ordinance, governmental rule or regulation to which UHCP, NHSC and
Subsidiary Corporation or any of their Subsidiaries or any of their respective
properties or assets is subject, except where such violation would not have,
individually or in the aggregate, a NHSC Material Adverse Effect. Each of UHCP,
NHSC and Subsidiary Corporation and their Subsidiaries have obtained all
licenses, permits and other authorizations and have taken all actions required
by applicable law or governmental regulations in connection with their business
as now conducted, where the failure to obtain any such item or to take any such
action would have a NHSC Material Adverse Effect.
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6.2 Authorization, Validity, and Effect of Agreements. Each of UHCP,
NHSC and Subsidiary Corporation has the requisite corporate power and authority
to execute and deliver this Agreement and all agreements and documents
contemplated hereby. The Board of Directors and a majority of the outstanding
shares of each of UHCP, NHSC and Subsidiary Corporation has authorized the
execution of this Agreement and the consummation of transactions contemplated
herein. The consummation by each of UHCP, NHSC and Subsidiary Corporation of the
transactions contemplated hereby has been duly authorized by all requisite
corporate action. This Agreement constitutes, and all agreements and documents
contemplated hereby (when executed and delivered pursuant hereto for value
received) will constitute, the valid and legally binding obligations of each of
UHCP, NHSC and Subsidiary Corporation, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of the charter or by-laws of UHCP, NHSC and Subsidiary Corporation,
or, to their best knowledge, any mortgage, lien lease, agreement, instrument,
order, judgment or decree to which UHCP, NHSC and Subsidiary Corporation are
bound, and will not violate any other material restriction of any kind or
character to which each of UHCP, NHSC and Subsidiary Corporation are subject.
This Agreement is a legal, valid and binding obligation of UHCP, NHSC and
Subsidiary Corporation and is enforceable in accordance with its terms and
conditions, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement or
creditors' rights or general equitable principles.
6.3 Capitalization. The authorized capital stock of Subsidiary
Corporation consists of 1,000 shares of Common Stock. As of January 27, 2005,
there was one share of Common Stock issued and outstanding, all of which are
held by UHCP. There are no outstanding subscriptions, options, rights,
debentures, instruments, convertible securities or other agreements, commitments
or obligations of Subsidiary Corporation to issue or to transfer from treasury
any additional shares of its capital stock of any class. Subsidiary Corporation
has no outstanding bonds, debentures, notes or other obligations the holders of
which have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the stockholders of Subsidiary
Corporation on any matter. All such issued and outstanding shares of Common
Stock are duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights.
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6.4 Subsidiaries. UHCP owns directly each of the outstanding shares of
capital stock of NHSC and Subsidiary Corporation. Each of the outstanding shares
of capital stock of NHSC and Subsidiary Corporation is duly authorized, validly
issued, fully paid and nonassessable, and is owned, directly or indirectly, by
UHCP free and clear of all liens, pledges, security interests, claims or other
encumbrances. Each of NHSC and Subsidiary Corporation does not have any
subsidiaries or own any interest in any other enterprise.
6.5 Other Interests. Neither NHSC nor Subsidiary Corporation owns
directly or indirectly any interest or investment (whether equity or debt) in
any corporation, partnership, joint venture, business, trust or entity.
6.6 Financial Statements. UHCP's audited consolidated financial
statements as of the two most recent completed fiscal years, and its unaudited
consolidated financial statements for all subsequent interim quarterly periods,
are available for review at ▇▇▇.▇▇▇.▇▇▇. Such financial statements are
materially correct. The financial statements have been prepared in accordance
with generally accepted accounting principles and practices consistently
followed by UHCP throughout the periods indicated, and fairly present the
financial position of UHCP on a consolidated basis as of the dates of the
balance sheets included in the financial statements and the results of
operations for the periods indicated.
6.7 Absence of Changes. Since September 30, 2004, NHSC has conducted
its business only in the ordinary course of such business and there has not been
(i) any event or change with respect to UHCP and NHSC having, individually or in
the aggregate, a NHSC Material Adverse Effect, (ii) any declaration, setting
aside or payment of any dividend or other distribution with respect to NHSC's
capital stock, or (iii) any material change in UHCP's accounting principles,
practices or methods.
6.8 Absence of Undisclosed Liabilities. As of the date of UHCP's and
NHSC's most recent consolidated balance sheet, NHSC has not had any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in such balance sheet.
6.9 Tax Returns. Within the times and in the manner prescribed by law,
each of UHCP and NHSC has filed all federal, state and local tax returns
required by law and has paid all taxes, assessments and penalties due and
payable. There are no present disputes as to the taxes of any nature payable by
UHCP and NHSC.
6.10 Intellectual Property. Subsidiary Corporation owns and holds all
necessary franchise rights, trademarks, service marks, trade names, inventions,
processes, know-how, trade secrets, copyrights, licenses and other rights
necessary to the business formerly conducted by Subsidiary Corporation
immediately prior to the Reorganization, except in connection with any excluded
assets pursuant to the Reorganization. To the best of the knowledge of UHCP,
NHSC and Subsidiary Corporation, Subsidiary Corporation is not infringing upon
or otherwise acting adversely to the right or claimed right of any person with
respect to any of the foregoing.
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6.11 Litigation. There are no actions, suits or proceedings pending
against NHSC or Subsidiary Corporation or, to the knowledge of UHCP, NHSC and
Subsidiary Corporation, threatened against NHSC or Subsidiary Corporation or any
of their respective properties or assets, at law or in equity, or before or by
any federal or state commission, board, bureau, agency or instrumentality, that
would have, individually or in the aggregate, a NHSC Material Adverse Effect or
would prevent or delay, in any internal report, the consummation of the
transactions contemplated by this Agreement. None of UHCP, NHSC or Subsidiary
Corporation is subject to any outstanding order, writ, injunction or decree
which, insofar as can be reasonably foreseen, individually or in the aggregate,
in the future would have a NHSC Material Adverse Effect or would prevent or
delay the consummation of the transactions contemplated hereby.
6.12 Assets. Each of UHCP, NHSC or Subsidiary Corporation has good and
marketable title to all of its property, free and clear of all liens, claims and
encumbrances, except as otherwise indicated on UHCP's consolidated financial
statements.
6.13 Material Contracts. NHSC and Subsidiary Corporation have no
material contracts. UHCP has no material contracts affecting the business of
NHSC or Subsidiary Corporation.
6.14 Indemnification. As a further inducement to BMW to consummate the
transaction contemplated by this Agreement, UHCP and NHSC shall jointly and
severally indemnify, defend and hold harmless BMW and its officers and directors
from, against, for and in respect of any and all losses, costs, damages, fines,
penalties, expenses and liabilities, including, without limitation, interest
which may be imposed in connection therewith, reasonable attorneys' fees,
investigations, court costs and other reasonable litigation expenses
(hereinafter referred to as a "Loss") suffered, sustained or incurred by BMW as
a result of, arising out of, or in connection with (i) any breach of any
representation, covenant or agreement made or to be performed by UHCP or NHSC
pursuant to this Agreement, or (ii) relating to or in any matter arising out of
facts or events which occurred on or prior to the Closing. UHCP and NHSC's
obligations under this Section 6.14 shall survive for a period of two (2) years
after the consummation of the transaction contemplated by this Agreement.
6.15 Indemnification of Officers and Directors. The parties acknowledge
and agree that prior to the execution of this Agreement, each corporate party
hereto had separately adopted resolutions and by-laws affording indemnification,
to the fullest extent permitted by law, of all officers, directors, promoters,
attorneys and other responsible persons, past or present, for any liability
which arises out of or pertains to any action or omission taken in good faith
while serving in such capacity on behalf of their respective corporations. The
parties hereby agree that each shall, to the fullest extent permitted by law,
retain and maintain such indemnification provisions with respect to its officers
and directors and that each party shall hereafter continuously maintain the
fullest indemnification of officers and directors as permitted by law. Nothing
herein shall be deemed to diminish or otherwise restrict BMW's rights to
indemnification under any provision of UCHP, NHSC or Subsidiary Corporation's
certificate of incorporation or by-laws, under Delaware law and under other
terms and provisions of this Agreement.
11
6.16 Environmental Laws and Regulations.
(a) (i) UHCP and each of its Subsidiaries is in compliance with all
applicable federal, state and local laws and regulations relating to pollution
or protection of human health or the environment (collectively, "Environmental
Laws") which compliance includes, but is not limited to, the possession by UHCP
and its Subsidiaries of all material permits and other governmental
authorizations required under applicable Environmental Laws, and compliance with
the terms and conditions thereof, except for non-compliance that would not have,
individually or in the aggregate, a NHSC Material Adverse Effect, (ii) neither
UHCP nor any of its subsidiaries has received written notice of, or, to the
knowledge of UHCP, is the subject of, any action, cause of action, claim,
investigation, demand or notice by any person or entity alleging liability under
or non-compliance with any Environmental Law (an "Environmental Claims") that
would have, individually or in the aggregate, a NHSC Material Adverse Effect;
and (iii) to the knowledge of UHCP, there are no circumstances that are
reasonably likely to prevent or interfere with such material compliance in the
future.
(b) There are no Environmental Claims which would have, individually
or in the aggregate, a NHSC Material Adverse Effect that are pending or, to the
knowledge of UHCP, threatened against UHCP or any of its Subsidiaries or, to the
knowledge of UHCP, against any person or entity whose liability for any
Environmental Claim UHCP or any of its Subsidiaries has or may have retained or
assumed either contractually or by operation of law.
6.17 No Brokers. Neither UHCP, NHSC or Subsidiary Corporation has
entered into any contract, arrangement or understanding with any person or firm
which may result in the obligation of BMW or of UHCP, NHSC or Subsidiary
Corporation to pay any finder's fees, brokerage or agent's commissions or other
like payments in connection with the negotiations leading to this Agreement or
the consummation of the transactions contemplated hereby. UHCP, NHSC and
Subsidiary Corporation are not aware of any claim for payment of any finder's
fees, brokerage or agent's commissions or other like payments in connection with
the negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby.
6.18 Full Disclosure. None of the representations and warranties made
by UHCP, NHSC or Subsidiary Corporation herein or in any exhibit, schedule,
certificate or memorandum furnished by UHCP, NHSC or Subsidiary Corporation, or
on their behalf, contains or will contain any untrue statement of material fact
or omit any material fact which would cause such exhibit, schedule, certificate
or memorandum to be materially misleading.
6.19 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations of UHCP, NHSC or Subsidiary
Corporation contained herein, BMW, its legal counsel and accountants shall have
had the opportunity to meet with UHCP, NHSC or Subsidiary Corporation, its legal
counsel and accountants to discuss the financial condition of UHCP, NHSC or
Subsidiary Corporation. UHCP, NHSC or Subsidiary Corporation shall have made
available to BMW all books and records of UHCP, NHSC or Subsidiary Corporation.
Each of UHCP, NHSC and Subsidiary Corporation specifically represents that it
has, and shall have through the closing hereof, no material debts, obligations,
liabilities or claims against it, other than those set forth in UHCP's
consolidated financial statements, including the notes thereto.
12
6.20. Filings. Upon closing, UHCP and NHSC shall assist Subsidiary
Corporation in the preparation and filing of all required filings before
authorities as Subsidiary Corporation shall determine, including in connection
with the preparation of the registration statement and the preparation of the
audited financial statements of Subsidiary Corporation.
6.21 Real Property. Neither NHSC nor Subsidiary Corporation owns any
real property or has leases, subleases, licenses or other agreements under which
NHSC or Subsidiary Corporation uses or occupies or has the right to use or
occupy, now or in the future, any real property (the "Real Estate Leases").
6.22 Insurance. NHSC and Subsidiary Corporation maintain with respect
to their operations and their assets, in full force and effect, policies of
insurance in the ordinary course of business as is usual and customary for
businesses similarly situated to NHSC and Subsidiary Corporation.
ARTICLE 7
Covenants
7.1 Investigative Rights. From the date of this Agreement until the
Closing Date, each party shall provide to the other party, and such other
party's counsel, accountants, auditors and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party's properties, books, contracts, commitments and
records for the purpose of examining the same. Each party shall furnish the
other party with all information concerning each party's affairs as the other
party may reasonably request.
7.2 Conduct of Business. Prior to Closing, NHSC and Subsidiary
Corporation shall not conduct any material business, except with the prior
written approval of BMW, and shall not sell, pledge or assign any assets without
the prior written approval of BMW. Prior to Closing, neither of these
corporations shall amend its Certificate of Incorporation or By-laws (except as
may be described in this Agreement), declare dividends or redeem or sell stock
or other securities. Prior to Closing, NHSC and Subsidiary Corporation shall not
incur additional or newly-funded liabilities, acquire or dispose of fixed
assets, change employment terms, enter into any material or long-term contract,
guarantee obligations of any third party, settle or discharge any balance sheet
receivable for less than its stated amount, pay more on any liability than its
stated amount, or enter into any other transaction, other than reasonable
expenses in connection with the Reorganization on prior written notice to BMW.
7.3 Acquisition Proposals. Prior to the Effective Time, UHCP agrees
(a) that neither UHCP nor any of its Subsidiaries shall, and UHCP shall direct
and use its best efforts to cause its officers, directors, employees, agents and
representatives (including, without limitation, any investment banker, attorney
or accountant retained by it or any of its Subsidiaries) not to, initiate,
solicit or encourage, directly or indirectly, any inquiries or the making or
implementation of any proposal or offer (including, without limitation, any
proposal or offer to its stockholders) with respect to a merger, acquisition,
consolidation or similar transaction involving, or any purchase of all or any
significant portion of the assets or any equity securities of NHSC or Subsidiary
13
Corporation (any such proposal or offer being hereinafter referred to as an
"Acquisition Proposal") or engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions with, any person
relating to an Acquisition Proposal, or otherwise facilitate any effort or
attempt to make or implement an Acquisition Proposal; (b) that it will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing and will take the necessary steps to inform the
individuals or entities referred to above of the obligations undertaken in this
Section 7.3; and (c) that it will notify BMW immediately if any such inquiries
or proposals are received by, any such information is requested from, or any
such negotiations or discussions are sought to be initiated or continued with,
it; provided, however, that nothing contained in this Section 7.3 shall prohibit
the Board of Directors of UHCP or NHSC from (i) furnishing information to or
entering into discussions or negotiations with, any person or entity that makes
an unsolicited bona fide written proposal to acquire NHSC pursuant to a merger,
consolidation, share exchange, purchase of a substantial portion of the assets,
business combination or other similar transaction, if, and only to the extent
that, (A) the Board of Directors of UHCP and NHSC determines in good faith that
such action is required for the Board of Directors to comply with its fiduciary
duties to stockholders imposed by law, (B) prior to furnishing such information
to, or entering into discussions or negotiations with, such person or entity,
UHCP provides written notice to BMW to the effect that it is furnishing
information to, or entering into discussions or negotiations with, such person
or entity and provides BMW with a copy of any such written proposal, and (C)
UHCP keeps BMW informed of the status (not the terms) of any such discussions or
negotiations; and (ii)to the extent applicable, complying with Rule 14e-2
promulgated under the Exchange Act with regard to an Acquisition Proposal.
Nothing in this Section 7.3 shall (x) permit any party to terminate this
Agreement (except as specifically provided in Article 9 hereof), (y) permit
UHCP, NHSC or Subsidiary Corporation to enter into any agreement with respect to
an Acquisition Proposal during the term of this Agreement, or (z) affect any
other obligation of any party under this Agreement.
7.4 Restructuring of Merger. Upon the mutual agreement of the parties,
the Merger shall be restructured in the form of a merger of BMW into Subsidiary
Corporation, with Subsidiary Corporation being the Surviving Corporation, or
such other form as the parties may agree, including a share exchange or asset
purchase between BMW and NHSC and/or Subsidiary Corporation. In such event, this
Agreement shall be deemed appropriately modified to reflect such form of
merger/acquisition.
ARTICLE 8
Conditions
8.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each party to effect the Merger shall be subject to the
fulfillment at or prior to the Closing Date of the following conditions:
(a) This Agreement and the transactions contemplated hereby
shall have been approved in the manner required by applicable law or by
applicable regulations of any stock exchange or other regulatory body by the
holders of the issued and outstanding shares of capital stock of the respective
parties entitled to vote thereon.
14
(b) Neither of the parties hereto shall be subject to any order
or injunction of a court of competent jurisdiction, which prohibits the
consummation of the transactions contemplated by this Agreement. In the event
any such order or injunction shall have been issued, each party agrees to use
its reasonable efforts to have any such injunction lifted.
(c) All consents, authorizations, orders and approvals of (or
filings or registrations with) any governmental commission, board or other
regulatory body required in connection with the execution, delivery and
performance of this Agreement shall have been obtained or made, except for
filings in connection with the Merger and any other documents required to be
filed after the Effective Time and except where the failure to have obtained or
made any such consent, authorization, order, approval, filing or registration
would not have an Material Adverse Effect following the Effective Time.
8.2 Conditions to Obligation of BMW to Effect the Merger. The
obligation of BMW to effect the Merger shall be subject to the fulfillment at or
prior to the Closing Date of the following conditions:
(a) Each of UHCP, NHSC and Subsidiary Corporation shall have
performed its agreements contained in this Agreement required to be performed on
or prior to the Closing Date and the representations and warranties of UHCP,
NHSC and Subsidiary Corporation contained in this Agreement and in any document
delivered in connection herewith shall be true and correct as of the Closing
Date, and BMW shall have received a certificate of the President of UHCP, NHSC
and Subsidiary Corporation, dated the Closing Date, certifying to such effect;
provided, however, that notwithstanding anything herein to the contrary, this
Section 8.2(a) shall be deemed to have been satisfied even if such
representations or warranties are not true and correct, unless the failure of
any of the representations or warranties to be so true and correct would have or
would be reasonably likely to have a NHSC Material Adverse Effect or otherwise
have a materially negative affect on BMW.
(b) From the date of this Agreement through the Effective Time,
there shall not have occurred any change in the financial condition, business,
operations or prospects of UHCP and its Subsidiaries, taken as a whole, that
would have or would be reasonably likely to have a NHSC Material Adverse Effect.
(c) UHCP, NHSC and Subsidiary Corporation shall have delivered
to BMW legal opinions of counsel substantially in the form set forth in Schedule
8.2(c).
(d) The directors and executive officers of Subsidiary Corporation
shall resign, and shall have designated nominees of BMW as directors and
executive officers of Subsidiary Corporation to serve in their place and stead,
until the next respective annual meetings of the shareholders and Board of
Directors of Subsidiary Corporation, and until their respective successors shall
be elected and qualified or until their respective prior resignations or
terminations.
15
8.3 Conditions to Obligation of UHCP, NHSC and Subsidiary Corporation
to Effect the Merger. The obligations of UHCP, NHSC and Subsidiary Corporation
to effect the Merger shall be subject to the fulfillment at or prior to the
Closing Date of the following conditions:
(a) BMW shall have performed its agreements contained in this
Agreement required to be performed on or prior to the Closing Date and the
representations and warranties of BMW contained in this Agreement and in any
document delivered in connection herewith shall be true and correct as of the
Closing Date, and UHCP, NHSC and Subsidiary Corporation shall have received a
certificate of the President of BMW, dated the Closing Date, certifying to such
effect; provided, however, that notwithstanding anything herein to the contrary,
this Section 8.3(a) shall be deemed to have been satisfied even if such
representations or warranties are not true and correct, unless the failure of
any of the representations or warranties to be so true and correct would have or
would be reasonably likely to have a BMW Material Adverse Effect.
(b) From the date of this Agreement through the Effective Time,
there shall not have occurred any change in the financial condition, business,
operations or prospects of BMW, taken as a whole, that would have or would be
reasonably likely to have a BMW Material Adverse Effect.
(c) BMW shall have delivered to UHCP, NHSC and Subsidiary
Corporation a legal opinion of its counsel substantially in the form set forth
in Schedule 8.3(c).
ARTICLE 9
Termination
9.1 This Agreement may be terminated at any time prior to the Closing
as follows: (i) by mutual written agreement of the parties; (ii) by either BMW
or NHSC if there has been a material breach by the other party of a
representation and warranty or agreement that cannot be cured on or prior to the
Closing; (iii) by either BMW or NHSC if the Closing shall not have been
consummated on or before January __, 2005, provided that the party seeking to
terminate this Agreement pursuant to this Section 9.1(iii) shall not be in
breach of any provisions of this Agreement nor have failed to fulfill any of its
obligations under this Agreement; (iv) by either BMW or NHSC if there shall be
any law or regulation that makes consummation of the transactions contemplated
hereby illegal or otherwise prohibited or if consummation of the transactions
otherwise prohibited or if consummation of the transactions contemplated hereby
would violate any nonappealable final order, decree or judgment of any court or
governmental body having competent jurisdiction. The party desiring to terminate
this Agreement shall give written notice of such termination to the other party.
9.2 Effect of Termination. If this Agreement is terminated as permitted
by Section 9.1, all obligations of the parties hereto shall terminate, except
the obligations of the parties pursuant to this Section 9.2, Section 10.3,
Section 10.4, Section 10.6, Section 10.9, Section 10.12, and Section 10.13.
Termination shall be without liability of any party, or any asset holder,
director, officer, employee, agent, consultant or representative of such party,
to the other party to this Agreement; provided that if such termination shall
result from the willful failure of any party to fulfill a condition to the
performance of the obligations of any other party, failure to perform a covenant
of this Agreement or breach by any party hereto of any representation or
warranty or agreement contained herein, such party shall be fully liable for any
and all actual out-of-pocket damages incurred or suffered by the other party as
a result of such failure or breach.
16
9.3 Extension; Waiver. At any time prior to the Effective Time, any
party hereto, by action taken by its Board of Directors, may, to the extent
legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed by or
on behalf of the party granting such extension or waiver.
ARTICLE 10
General Provisions
10.1 Nonsurvival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall be deemed to the extent
expressly provided herein to be conditions to the Merger and shall not survive
the Merger, provided, however, that the agreements contained in Article 4 and in
Sections 5.14, 5.15, 6.14, 6.15 and 7.4, this Article 10 and the agreements
delivered pursuant to this Agreement shall survive the Merger.
10.2 Notices. Any notice, request, instrument or communication required
or permitted to be given, served or delivered to any of the parties hereto shall
be deemed to have been given, served or delivered (i) on the seventh business
day after it is deposited in the United States mail, registered or certified and
with proper postage prepaid, or (ii) on the second business day after it is
deposited with Federal Express or any other recognized overnight courier service
with proper fees prepaid, or (iii) on the first business day after which it is
sent and received by facsimile, in each case addressed,
if to UHCP:
United Heritage Corporation
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax:
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
17
If to NHSC:
National Heritage Sales Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Subsidiary Corporation:
Heritage Food Group, Inc.
-----------------------------
-----------------------------
-----------------------------
Fax:
If to BMW:
BMW Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Law Offices of ▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such other place and with such other copies as any party may designate as
to itself by written notice to the others.
10.3 Assignment; Binding Effect; Benefit. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, except for the provisions
of Article 4 and Sections 5.14, 5.15, 6.14 and 6.15 (collectively, the "Third
18
Party Provisions"), nothing in this Agreement, expressed or implied, is intended
to confer on any person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement. The Third Party
Provisions may be enforced on behalf of the beneficiaries thereof by the
directors of BMW prior to the Effective Time. UHCP shall pay all expenses,
including attorneys' fees, that may be incurred by any of such directors in
enforcing the Third Party Provisions.
10.4 Entire Agreement. This Agreement, the Exhibits, the Schedules, and
any documents delivered by the parties in connection herewith constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings (oral and written) among the
parties with respect thereto. No addition to or modification of any provision of
this Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
10.5 Amendment. This Agreement may be amended by the parties hereto, by
action taken by their respective Boards of Directors, at any time before or
after approval of matters presented in connection with the Merger by the
stockholders of the parties, but after any such stockholder approval, no
amendment shall be made which by law requires the further approval of
stockholders without obtaining such further approval. This Agreement may not be
amended except by an instrument in writing signed by or on behalf of each of the
parties hereto.
10.6 Governing Law. The validity and interpretation of this Agreement
shall be governed by the internal laws of the State of New York, without
reference to rules regarding conflicts of law. Any court or other proceedings to
enforce this agreement, or any dispute related hereto, shall be brought in the
courts located in New York County in the State of New York.
10.7 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies of this
Agreement, each of which may be signed by less than all of the parties hereto,
but together all such copies are signed by all of the parties hereto.
10.8 Headings. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only, and shall be given no substantive
or interpretive effect whatsoever.
10.9 Interpretation. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa. This Agreement, or any Section thereof, shall not be construed against
any party due to the fact that said Agreement or any Section thereof was drafted
by said party.
10.10 Waivers. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants
or agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision hereunder.
19
10.11 Incorporation of Exhibits and Schedules. All Exhibits and
Schedules attached hereto and referred to herein are hereby incorporated herein
and made a part hereof for all purposes as if fully set forth herein.
10.12 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or otherwise affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
10.13 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Delaware Court or in
the New York County Supreme Court, this being in addition to any other remedy to
which they may be entitled at law or in equity.
10.14 Subsidiaries. As used in this Agreement, the word "Subsidiary"
when used with respect to any party means any corporation or other organization,
whether incorporated or unincorporated, of which such party directly or
indirectly owns or controls at least a majority of the securities or other
interests having by their terms ordinary voting power to elect a majority of the
board of directors or others performing similar functions with respect to such
corporation or other organization, or any organization of which such party is a
general partner. When a reference is made in this Agreement to Significant
Subsidiaries, the words "Significant Subsidiaries" shall refer to Subsidiaries
(as defined above) which constitute "significant subsidiaries" under Rule 405
promulgated by the SEC under the Securities Act.
10.15 Retention of Records. UHCP and NHSC shall deliver all material
documents relating to Subsidiary Corporation to BMW. Unless otherwise consented
to in writing by BMW, UHCP and NHSC will not for a period of five years from the
Closing, destroy or otherwise dispose of any of the records related to
Subsidiary Corporation. To the extent such records are not delivered to BMW,
UHCP and NHSC shall allow BMW and its representatives access to the records at
all reasonable times upon reasonable notice.
10.16 Further Assurances. The parties hereto shall execute and deliver
all documents, provide all information and take or forebear from all such action
as may be necessary or appropriate to achieve the purpose of the Agreement. Each
of UHCP and NHSC agrees that it will, at any time and from time to time, at the
request of BMW, execute and deliver to BMW such instruments as are reasonably
20
necessary to vest in Surviving Corporation full right, title and interest in or
to the assets transferred pursuant to the Reorganization. UHCP and NHSC agree to
cooperate with Surviving Corporation in notifying National Heritage and
Subsidiary Corporation's relevant vendors, suppliers and potential customers
that Surviving Corporation has acquired all the assets (excluding certain
specified assets) of National Heritage pursuant to the Reorganization, and
further to reasonably cooperate in obtaining an orderly transition of such
transferred assets to Surviving Corporation.
[remainder of this page left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf as of the day and year first
written above.
Heritage Food Group, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: President
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Secretary
United Heritage Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
Attest:
/s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary
National Heritage Sales Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
Attest:
/s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary
BMW Holdings, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Secretary
22
Schedule 5.3
1. See Section 5.17 of the Merger Agreement
2. See Shareholders' Agreement, dated as of August 24, 2004, among BMW
Holdings, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Crusader Investments, LLC
3. See Letter of Intent with Ford Brothers
23
Schedule 5.6
Incorporated by reference to Items 11 and 12 to Supplement No. 1 to BMW
Holdings, Inc. Document Index.
24
Schedule 5.7
None.
25
Schedule 5.11
Matters related to liabilities (accounts payable) assumed by BMW Meats pursuant
to acquisition of assets of St. ▇▇▇▇▇ Gourmet:
1. Savage Poultry, $23,727
2. Stratmar Systems, $8,811
Matters instituted by BMW Meats LLC for payment of accounts receivable:
1. American Frozen Foods, $296,478
2. Southern Foods Inc., $34,317
26
Schedule 5.13
Refer to the BMW Holdings, Inc. Document Index, and Supplements 1, 2 and 3
thereto, incorporation by reference herein.
27
Schedule 8.2(c)
[To be appended]
28
Schedule 8.3(c)
[To be appended]
29
EXHIBIT A
[Annexed hereto]
30