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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Banc of America Securities LLC; Boulder Specialty Brands, Inc.; Citigroup Global Markets Inc.; Bank of America, NA

Date:

2006

Size:

Preview shows 96KB of 267KB total

Price:

$69

ID:

#2548045

► Plans ► Agreements ► Agreements & Plans of Merger
► Financial
► Financial ► Money Center Banks

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

GFA HOLDINGS, INC.

SHAREHOLDERS REPRESENTATIVE

BSB ACQUISITION CO., INC.

AND

BOULDER SPECIALTY BRANDS, INC.

DATED AS OF SEPTEMBER 25, 2006

TABLE OF CONTENTS


		Page
AGREEMENT AND PLAN OF MERGER		1

ARTICLE I - DEFINITIONS		1

1.1	DEFINITIONS	1

1.2	CROSS-REFERENCES	7

ARTICLE II - THE MERGER		9

2.1	THE MERGER	9

2.2	CLOSING	9

2.3	FILING OF CERTIFICATE OF MERGER	9

2.4	EFFECT OF MERGER	9

2.5	EFFECT ON STOCK	9

2.6	ORGANIZATIONAL DOCUMENTS	10

2.7	OFFICERS AND DIRECTORS	10

2.8	CLOSING	10

2.9	EXCHANGE OF CERTIFICATES	12

2.10	WITHHOLDING	14

2.11	ALLOCATION OF AMOUNTS PAID BY PARENT	14

2.12	PHYSICAL INVENTORY	15

2.13	OPTIONAL MERGER CONSIDERATION	15

ARTICLE III - CONDITIONS TO CLOSING		18

3.1	CONDITIONS TO THE OBLIGATIONS OF THE COMPANY	18

3.2	CONDITIONS TO PARENTS AND THE MERGER SUBSIDIARYS OBLIGATIONS	19

ARTICLE IV - COVENANTS PRIOR TO CLOSING		22

4.1	AFFIRMATIVE COVENANTS	22

4.2	NEGATIVE COVENANTS	24

4.3	NOTICE OF DEVELOPMENTS	26

4.4	EXCLUSIVITY	26

4.5	HSR ACT FILING	27

4.6	TERMINATION OF ADVISORY AGREEMENT	27



4.7	CONSENTS	27

4.8	ESTOPPEL CERTIFICATE	28

4.9	PUBLICITY	28

4.10	PROXY STATEMENT; PARENT STOCKHOLDERS MEETING	28

4.11	COMPANY SHAREHOLDER APPROVAL	30

4.12	SUBSTITUTE FINANCING	30

4.13	COPIES OF TAX RETURNS	31

4.14	OTHER ACTIONS	31

4.15	REQUIRED INFORMATION	31

4.16	TRUST FUND	32

4.17	FIRPTA CERTIFICATES	32

4.18	CITIGROUP AGREEMENT	32

ARTICLE V - REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY AND GFA BRANDS		32

5.1	ORGANIZATION AND POWER; SUBSIDIARIES AND INVESTMENTS	32

5.2	AUTHORIZATION	32

5.3	CAPITALIZATION	33

5.4	NO BREACH	33

5.5	FINANCIAL STATEMENTS	33

5.6	ABSENCE OF CERTAIN DEVELOPMENTS	34

5.7	REAL PROPERTY LEASES	34

5.8	TITLE TO ASSETS	35

5.9	CONTRACTS AND COMMITMENTS	36

5.10	PROPRIETARY RIGHTS	38

5.11	GOVERNMENTAL LICENSES AND PERMITS	40

5.12	PROCEEDINGS	41

5.13	COMPLIANCE WITH LAWS	41

5.14	ENVIRONMENTAL MATTERS	41

5.15	EMPLOYEES	41

5.16	EMPLOYEE BENEFIT PLANS	42

5.17	INSURANCE	43

5.18	TAX MATTERS	44


5.19	BROKERAGE	45

5.20	UNDISCLOSED LIABILITIES	45

5.21	INFORMATION REGARDING DIRECTORS, OFFICERS, BANKS, ETC	46

5.22	BOOKS AND RECORDS	46

5.23	INTEREST IN CUSTOMERS, SUPPLIERS AND COMPETITORS	46

5.24	CONDITION OF ASSETS	46

5.25	PRODUCT WARRANTY	46

5.26	ACCOUNTS RECEIVABLE	47

5.27	INVENTORY	47

5.28	PROXY STATEMENT	47

5.29	ADVERTISING AND PROMOTIONAL EXPENSES	47

5.30	FULL DISCLOSURE	48

ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF PARENT		48

6.1	ORGANIZATION AND POWER	48

6.2	AUTHORIZATION	48

6.3	NO VIOLATION	48

6.4	SEC FILINGS; FINANCIAL STATEMENTS	49

6.5	TRUST FUND	49

6.6	PROCEEDINGS	50

6.7	BROKERAGE	50

6.8	INVESTIGATION; NO ADDITIONAL REPRESENTATIONS; NO RELIANCE, ETC	50

ARTICLE VII - TERMINATION		50

7.1	TERMINATION	50

7.2	EFFECT OF TERMINATION	52

7.3	WAIVER OF RIGHT TO TERMINATE	52

ARTICLE VIII - ADDITIONAL AGREEMENTS; COVENANTS AFTER CLOSING		52

8.1	NO INDEMNIFICATION	52

8.2	MUTUAL ASSISTANCE	52

8.3	CONFIDENTIALITY	53

8.4	EXPENSES	53

iii



8.5	DISPUTES; ARBITRATION PROCEDURE	53

8.6	FURTHER TRANSFERS	54

8.7	TRANSFER TAXES; RECORDING CHARGES	54

8.8	SHAREHOLDERS REPRESENTATIVE	54

8.9	EMPLOYEES	55

ARTICLE IX - MISCELLANEOUS		55

9.1	WAIVER OF CLAIMS TO TRUST ACCOUNT	55

9.2	AMENDMENT AND WAIVER	56

9.3	NOTICES	56

9.4	ASSIGNMENT	58

9.5	SEVERABILITY	58

9.6	NO STRICT CONSTRUCTION	58

9.7	CAPTIONS	58

9.8	NO THIRD PARTY BENEFICIARIES	58

9.9	COMPLETE AGREEMENT	58

9.10	COUNTERPARTS	58

9.11	GOVERNING LAW AND JURISDICTION	58


Exhibit List

Exhibit A				Certificate of Merger

Exhibit B				Letter of Transmittal

Exhibit C				Parent Officers Certificate

Exhibit D				Company Officers Certificate

Exhibit E				Officer and Director Release

Exhibit F				Shareholder Release

Exhibit G				Debt Commitment Letter

Exhibit H				PIPE Securities Purchase Agreement


List of Schedules

Schedule 3.2(g)				Consents

Schedule 4.2				Negative Covenants

Schedule 4.2(h)				Certain Material Contracts

Schedule 5.1				Jurisdictions

Schedule 5.3				Capitalization

Schedule 5.4				No Breach

Schedule 5.5				Unaudited Financial Statements

Schedule 5.6				Certain Developments

Schedule 5.7(a)				Leased Real Property

Schedule 5.7(d)				Cost of Leased Real Property

Schedule 5.8				Leased Personal Property

Schedule 5.9(a)				Contracts

Schedule 5.9(b)				Contract Issues

Schedule 5.10(b)				Proceedings Regarding Proprietary Rights

Schedule 5.10(d)				Proprietary Rights

Schedule 5.10(d)(i)				Liens on Proprietary Rights

Schedule 5.10(d)(iii)				Indemnification Regarding 5.10(d) Items

Schedule 5.10(d)(v)				Fees Regarding 5.10(d) Items

Schedule 5.10(e)				Licenses

Schedule 5.11				Government Licenses

Schedule 5.12				Proceedings

Schedule 5.13				Compliance with Laws

Schedule 5.16(a)				Employee Benefit Plans

Schedule 5.16(i)				Non-Deductible and Parachute Payments

Schedule 5.16(j)				Tax Indemnities

Schedule 5.17				Insurance

Schedule 5.17(c)				Self-Insurance

Schedule 5.18				Tax

Schedule 5.19				Brokerage

Schedule 5.20				Undisclosed Liabilities

Schedule 5.21				Directors, Officers, Banks

Schedule 5.23				Related Party Transactions

Schedule 5.25				Product Warranty

Schedule 5.27				Inventory

Schedule 6.7				Brokerage

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER is made and entered into as of September 25, 2006, by and among GFA Holdings, Inc., a Delaware corporation (the Company), TSG4, L.P., a Delaware limited partnership, in its capacity as representative of the shareholders of the Company (the Shareholders Representative), Boulder Specialty Brands, Inc., a Delaware corporation (Parent), and BSB Acquisition Co., Inc., a Delaware corporation and wholly-owned subsidiary of Parent (the Merger Subsidiary).

RECITALS:

A. Parent, the Merger Subsidiary and the Company desire to enter this Agreement pursuant to which Parent will acquire all of the issued and outstanding stock of the Company as a result of the merger of the Merger Subsidiary with and into the Company.

B. The Boards of Directors of Parent, the Merger Subsidiary and the Company have determined that it is advisable and in the best interests of Parent, the Merger Subsidiary and the Company, and their respective shareholders, that the Merger Subsidiary be merged with and into the Company.

C. The Boards of Directors of Parent, the Merger Subsidiary and the Company have each unanimously approved this Agreement and the transactions contemplated hereby and have agreed to recommend that their respective shareholders adopt and approve this Agreement.

In consideration of the premises, the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

1.1 Definitions. As used in this Agreement, the following terms have the meanings set forth below.

Adjusted Cash means (i) the amount of Cash held by the Company and GFA Brands as of the Cutoff Date minus (ii) the amount of Indebtedness of the Company and GFA Brands as of the Cutoff Date (as evidenced by payoff letters issued to the Company and GFA Brands by their lenders, which shall be delivered to Parent prior to the Cutoff Date). For the avoidance of doubt, Adjusted Cash may be a positive or negative number.

Affiliate of any particular Person means any other Person controlling, controlled by or under common control with such Person.

Affiliated Group means an affiliated group as defined in Section 1504 of the Code (or any analogous combined, consolidated or unitary group defined under any income Tax Law) of which the Company or GFA Brands is or has been a member.

Agreement means this Agreement and Plan of Merger, together with all schedules and exhibits attached hereto.

Assets means all assets owned or utilized by the Company or GFA Brands, including, without limitation, Leased Real Property, Personal Property, Inventory, Accounts, goodwill, Proprietary Rights and any asset listed on the June 30 Financial Statements or any subsequently delivered balance sheet of the Company or GFA Brands.

Audited Financial Statements means the June 30, 2006 audited financial statements, the December 31, 2005 audited financial statements, the audited financial statements for the three-month period ending March 30, 2004, and the stub period ending December 31, 2004, and the December 31, 2003 audited financial statements. For all purposes under this Agreement, Audited Financial Statements shall include a balance sheet and the related statements of operation, changes in stockholders equity and cash flows and any required footnotes and such other disclosure materials, in each case, to the extent required to be included in the Proxy Statement.

Bonus Payments means the amount of any bonus or severance obligations paid or payable by the Company, GFA Brands or the Surviving Corporation to any of their respective shareholders, directors, officers or employees in connection with the consummation of the transactions contemplated hereby including, without limitation, any bonus payable to New Industries Corporation pursuant to that certain Extended Transitional Services Agreement dated July 21, 2006, by and between GFA Brands and New Industries Corporation which shall include the Earnings Bonus and the Sales Bonus (as defined therein) and any amounts payable to Roger Ansley pursuant to that certain Letter Agreement by and between Roger Ansley and GFA Brands dated on or about July 21, 2006, which amount shall specifically include any amounts payable to or on behalf of Mr. Ansley by the Company or GFA Brands with respect to any Taxes incurred by Mr. Ansley in connection with any such bonus. In the event the Bonus Payments include any consideration other than cash payments and other than the grant, sale, issuance of or acceleration of vesting of equity interests in the Company prior to the Closing, the value of such consideration shall be included in the calculation of the Bonus Payments.

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