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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of Earliest event reported) June 19, 1996
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Ferrara Food Company, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 1-13090 65-0137866
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(State or other juris- Commission File (IRS Employer
diction of incorporation No. Identification No.)
120 Tices Lane, Suite C, East Brunswick, NJ 08816-2014
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (908) 651-7600
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Item 2 Acquisition or Disposition of Assets
On June 19, 1996, Ferrara Food Company, Inc. (the "Registrant") sold to
Colavita Pasta & Olive Oil Corp. ("Colavita") all of its rights in and to its
License with Ferrara Food & Confections, Inc. ("FF&C"). In addition, the
Registrant sold to Colavita all of its inventory relating to the Registrant's
license with FF&C. In full consideration thereof, Colavita agreed to pay the
Registrant approximately $1,440,000 which was allocated as follows: (i) $250,000
for the purchase of the License and (ii) $1,170,000 for the purchase of the
inventory and certain equipment. Colavita paid the Registrant $450,000 (the
"First Payment") on signing the Assignment of License and Asset Purchase
Agreement ("the "Agreement") and agreed to pay $970,000 sixty days from the
date of the Agreement (the "Second Payment"). In addition, the Registrant has
paid in advance for certain merchandise which it has not yet received.
Colavita has agreed to purchase from the Registrant such merchandise at cost
upon its receipt. The Registrant believes the final purchase price will be in
excess of $1,600,000.
The Registrant agreed to pay FF&C $210,000 out of the proceeds from the
First Payment, on account, for monies due and payable FF&C and to pay Banca del
Gottardo $40,000 which shall be applied to interest on the Registrant's
convertible note. From the Second Payment, the Registrant is required to pay
Banca del Gottardo, $188,500 and FF&C $4,203.
In connection with the above transaction, the Registrant has agreed,
subject to shareholder approval to change its corporate name.
In order to consummate the aforesaid transaction, the consent of two of
the Registrant's lenders as well as one other entity to whom the Registrant gave
a guaranty in connection with a loan to one of its subsidiaries was required. As
consideration for two of said parties releasing their liens on the assets of the
Registrant, the Registrant reduced the exercise price of a warrant given to
InterEquity Capital Partners L.P. from $1.31 per share to $0.15 per share and
issued a warrant to purchase one million shares at $0.10 per share to Banca del
Gottardo.
Until such time as its corporate name is changed, the Registrant will
continue to do business under the name Ferrara Food Company, Inc.
Item 5. Other Events
The Registrant has retained the New York law firm of Seiff &
Kretz to conduct an internal investigation to determine the reasons as to the
magnitude of the Registrant's financial discrepancies in it's previously
reported results of operations for the nine months ended September 30, 1995,
the breakdown of its
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computer system and its inability to locate certain supporting documents.
Furthermore, the Registrant believes that its preliminary results of operations
for fiscal 1995 will indicate a net loss of approximately $15,500,000 from what
had been previously reported as $9,500,000 in a press release. The increase in
the net loss is attributed to management's desire to recognize impairment in and
writeoff of certain intangible assets such as good will, advertising credits and
slotting fees and a restructuring charge for the sale of the Registrant's
wholesale food operations as set forth in Item 2 hereof.
Item 7.
(c) Exhibits
2. (a) Assignment of License and Asset Purchase Agreement dated
as of June 19, 1996 by and between Ferrara Food Company, Inc. and Colavita Pasta
& Olive Oil Corp.
(b) Amendment Agreement dated June 19, 1996 by and between
InterEquity Capital Partners, L.P., La Torinese USA, Inc. and Ferrara Food
Company, Inc.
(c) Agreement dated as of June 19, 1996 by and between Ferrara
Food Company, Inc. and Banca del Gottardo.
(d) Consent to Assignment dated June 19, 1996 by and between
Ferrara Foods and Confections, Inc., Ferrara Food Company, Inc. and Colavita
Pasta & Olive Oil Corp.
(e) Supply Agreement by and between La Torinese USA, Inc.,
Ferrara Food Company, Inc. and Colavita Pasta & Olive Oil Corp.
(f) Supply Agreement by and between Ferrara Food Company, Inc.
and Colavita Pasta & Olive Oil Corp.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Ferrara Food Company, Inc.
By: /s/ Eugene Marfuggi
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Eugene Marfuggi
President
Dated: June 28, 1996
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EXHIBIT 2(a)
ASSIGNMENT OF LICENSE AND ASSET PURCHASE AGREEMENT
DATED AS OF JUNE 19, 1996 BY AND BETWEEN
FERRARA FOOD COMPANY, INC. AND COLAVITA PASTA & OLIVE OIL CORP.
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ASSIGNMENT OF LICENSE AND ASSET PURCHASE AGREEMENT
AGREEMENT made as of this 19th day of June, 1996, by and between
FERRARA FOOD COMPANY, INC., a Delaware corporation having its principal place of
business at 120 Tices Lane, East Brunswick, New Jersey 08816 (herein "Ferrara")
and COLAVITA PASTA & OLIVE OIL CORP., a New Jersey corporation having its
principal place of business at 2537 Brunswick Avenue, Linden, New Jersey 07036
(herein the "Purchaser").
WITNESSETH:
WHEREAS, pursuant to a License and Asset Purchase Agreement dated July
1, 1991 by and between Ferrara and Ferrara Food and Confections, Inc. ("FF&C"),
Ferrara was granted an exclusive license (the "License") to use the trademarks,
service marks, tradename and logos in connection with the importing and
wholesale sale and distribution of certain specialty food products in the
continental United States (the "Wholesale Grocery Business"); and
WHEREAS, pursuant to the License, Ferrara is engaged in the Wholesale
Grocery Business; and
WHEREAS, Ferrara desires to assign all of its right, title and interest
in the License to Purchaser and the Purchaser desires to acquire the License and
certain inventory of Ferrara (the "Inventory"), upon the terms and conditions
herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. Transfer of Assets.
(a) On the terms and subject to the conditions herein set
forth, at the Closing (as hereinafter defined), Ferrara hereby sells, conveys
and assigns to Purchaser, free and clear of all liens, claims, encumbrances and
title defects of any kind, the following:
(1) All of its right, title and interest in and to the
License.
(2) The Inventory and supplies, including saleable unfinished
goods as more fully set forth in Section 3(a) hereof and as set forth on
Schedule A hereto.
(3) Ferrara shall transfer and deliver to Purchaser records
relating to the operations of the Wholesale Grocery Business required
for the continued operation of the Wholesale Grocery Business,
including, but not limited to, customer lists, supplier lists and
computer presentations.
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(4) Ferrara shall assign to Purchaser and Purchaser shall
assume all of Ferrara's right, title and interest in any liabilities
thereunder to all purchase and sales orders and contracts of the
Wholesale Grocery Business made in the regular course of said business
to which Ferrara is a party (herein the "orders"), all of which shall
be listed on Schedule B hereto, except as to orders or contracts having
a value of less than $500.
(5) Certain office and industrial equipment as set forth on
Schedule C.
(6) All prepaid shelving allowances, slotting fees and
supermarket buy-ins.
(b) Anything herein to the contrary notwithstanding, Ferrara
shall not transfer, convey or assign and the Purchaser shall not purchase any of
the following which shall be retained by Ferrara:
(i) any rights to Ferrara's Europa Food Division
and/or its products and any inventory thereof;
(ii) any of Ferrara's cash or cash equivalents;
(iii) any of Ferrara's accounts or notes receivable;
(iv) any of Ferrara's claims for tax refunds;
(v) any of Ferrara's accounts payables;
(vi) all other assets of Ferrara not expressly
transferred pursuant to the terms of this Agreement.
(c) Simultaneously with this Agreement, Ferrara and its
subsidiary La Torinese USA, Inc. ("La Torinese") shall enter into Supply
Agreements with the Purchaser in the form of Exhibit A and Exhibit B hereto.
(d) Except as under the terms of the License, the Purchaser is
not assuming, nor shall it be responsible for, any liabilities or obligations of
Ferrara, whether direct or indirect, present or deferred, absolute, accrued,
contingent or otherwise, of any kind or nature (except for the orders and other
obligations expressly assumed pursuant to the terms of this Agreement)
including, without limitation, taxes or duties of any kind (except when
affecting the cost of the Inventory sold and transferred hereunder), accounts
payable, royalties or product liability claims. Without limiting the generality
of the foregoing, Ferrara shall remain liable for returns or any claims of any
kind or description based upon the sale by Ferrara of any merchandise prior
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to the Closing Date or any warranty, express or implied, with respect thereto.
Ferrara shall promptly settle any such claims for returns on commercially
reasonable terms and otherwise defend or settle any such other claims.
Merchandise returned to Purchaser in good, saleable condition shall be held for
disposition at the direction of Ferrara.
(e) The Purchaser hereby waives compliance by Ferrara with the
provisions of the Bulk Sales Law or any similar law, if applicable, to the
transactions contemplated herein and, in this connection Ferrara shall indemnify
and hold Purchaser harmless from and against any claim, demand, damage, loss or
expense, including reasonable attorney's fees and costs, arising from any claim
or demand of any creditor or purported creditor of Ferrara. Ferrara shall pay or
discharge all trade payables or other indebtedness of Ferrara relating to the
transaction as promptly as practicable after the Closing.
2. Assumption of License.
Purchaser shall, from and after the date of this agreement, assume, pay
and perform all obligations, duties and liabilities under the License.
3. Purchase Price.
(a) On the terms and subject to the conditions herein set
forth, Purchaser agrees to purchase the License and Inventory described in
Paragraph 1 hereof and in full consideration thereof Purchaser agrees to pay
Ferrara the sum of $1,440,735.74 which shall be allocated as follows: (i)
$250,000 for the Purchase of the License and (ii) $1,170,100 for the purchase of
the Inventory and certain equipment; payment shall be made as follows: (x)
$450,000 upon the signing of this Agreement (the "First Payment") and (y)
$970,100 sixty (60) days from the date hereof (the "Second Payment"). In
addition to (i) and (ii) in this Section 3(a), Purchaser agrees to purchase at
Ferrara's cost, all saleable unfinished goods required to package products
currently being sold by Ferrara, including artwork and films owned by Ferrara,
payment for which shall be made in the Second Payment. In addition, all prepaid
merchandise shall be paid for by Purchaser upon receipt of said merchandise by
Purchaser. All such payments shall be made by certified or official bank check.
(b) Anything to the contrary in Section 3(a) hereof
notwithstanding, Purchaser shall deduct $40,000 from the First Payment and
$188,500 from the Second Payment and remit said amounts by certified or official
bank check to Rubin Baum Levin Constant & Friedman, as attorneys for Banca del
Gottardo, 30 Rockefeller Plaza, New York, New York 10112.
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(c) Anything to the contrary in Section 3(a) hereof
notwithstanding, Purchaser shall deduct $210,000 from the First Payment and
$54,203.92 from the Second Payment which amounts represent accounts payable due
FF&C and $121,332.32 from the Second Payment which amount represents license
Fees due FF&C from April 1, 1996 through and including June 19, 1996 and remit
said amounts to FF&C by certified or official bank check 195 Grand Street, New
York, New York 10013.
4. Collection of Ferrara's Receivables.
All Ferrara's receivables due from customers for the Wholesale Grocery
Business for merchandise actually shipped by Ferrara, or for its account prior
to the close of business on the date preceding the Closing Date (hereinafter
referred to as the "Ferrara's Receivables") shall be and remain the property of
Ferrara, and Purchaser is acquiring no interest, nor liability in connection
with unpaid or partially paid invoices of Ferrara's Receivables.
Ferrara and Purchaser agree as an integral non-severable portion of
this Agreement that from and after the Closing Date, Purchaser shall continue
for a period of three (3) years following the Closing Date (hereinafter referred
to as the "Collection Period") to receive payments towards Ferrara's Receivables
for the account and sole benefit of Ferrara, remitting said payments to Ferrara
(or to such entity as Ferrara shall designate) daily. Purchaser also agrees to
assist Ferrara in procuring payment of the Ferrara's Receivables by: (i)
refusing to ship Ferrara merchandise to a customer who has failed to pay an
account which was less than sixty (60) days past due as of the Closing Date,
unless said customer has submitted a written claim or dispute to Purchaser with
respect to that account, and (ii) with respect to accounts which were over sixty
(60) days past due as of the Closing Date or accounts as to which the customer
has submitted a claim, providing Ferrara access to any original books of
account, sales documentation, or computer runs which may assist Ferrara in
collecting said account or resolving any claims or disputes. Purchaser shall not
be obligated to commence suit or take steps other than as provided herein for
the collection of Ferrara's Receivables.
The foregoing provision is for the benefit of Ferrara only.
Accordingly, Ferrara may at any time direct Purchaser to cease collection of
Ferrara's Receivables, or any portion thereof. Upon the earlier to occur of the
last day of the Collection Period, or Ferrara's direction to Purchaser to cease
collection (which may be made as to any or all of the Ferrara's Receivables),
the affected Ferrara's Receivables and all amounts held by Purchaser with
respect thereto, and any and all related records, including without limitation,
original books of account and computer runs, shall be immediately made available
for delivery to Ferrara. The obligation
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of the Purchaser to remit amounts received from any Listed Customer who has not
made any claim against Ferrara shall continue, notwithstanding such termination
throughout the complete period provided for in this Section.
5. Closing.
The consummation of the transactions contemplated by this Agreement
shall take place at a closing (the "Closing") at the offices of Loselle
Greenawalt Kaplan Blair & Adler, 140 East 45th Street, New York, New York 10017
at 5:00 p.m., Eastern Time on June 19, 1996 or such other time and place as the
parties may agree.
6. Representations and Warranties of Ferrara. Ferrara represents and
warrants to Purchaser as follows:
(a) Organization and Standing. Ferrara is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Ferrara has full power and authority to own its property and to carry
on its business as now being conducted. Subject to the approval of FF&C as set
forth in the License Agreement, Ferrara has full power and authority to execute
and perform this Agreement.
(b) Authorization. The execution and delivery of this
Agreement by Ferrara, the assignment and transfer of the License and Inventory
by Ferrara to Purchaser, the execution and delivery of all agreements and
documents pursuant hereto and thereto, and the performance by Ferrara of its
obligations and undertakings hereunder and thereunder have been duly authorized
and approved by the Board of Directors of Ferrara, which approval constitutes
all necessary corporate action on the part of Ferrara to validly authorize the
execution and consummation of this Agreement, and each other agreement and
document provided herein. This Agreement is a valid and binding obligation of
Ferrara, enforceable in accordance with its terms. Subject to the approval of
FF&C, neither the execution and delivery of this Agreement nor the consummation
of the transactions contemplated hereby will violate or conflict with or result
in any breach under any provision of any agreement or instrument to which
Ferrara is a party or is otherwise bound, or any order, license, permit, decree,
writ, injunction or judgment of any court or governmental agency having
jurisdiction over Ferrara, the Wholesale Grocery Business, any of the Assets,
the License or any applicable laws or regulations. No consent or approval of any
governmental authority is required in connection with the execution and delivery
of this Agreement by Ferrara or its compliance with the provisions hereof or
thereof.
(c) Brokerage. This Agreement and the transactions
contemplated herein were not brought about by and no brokerage commission or
finder's fee is or will be due to any person or firm.
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(d) Insurance. Ferrara agrees to maintain a comprehensive
liability insurance policy, including product liability coverage, with minimum
limits of $2,000,000 for bodily injury, including death, for three years from
the date of Closing. Ferrara further agrees to name Colavita Pasta & Olive Oil
Corp. as an additional insured under said insurance, and shall provide
Purchaser, within thirty days of Closing, and within thirty days of the first
and second anniversaries of the Closing, with a Certificate of Insurance
evidencing Ferrara's compliance with this section.
7. Representations and Warranties of Purchaser. The Purchaser
represents and warrants to Ferrara as follows:
(a) Organization and Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey. Purchaser has full power and authority to own its property and to
carry on its business as now being conducted. Purchaser has full power and
authority to execute and perform this Agreement.
(b) Authorization. The execution and delivery of this
Agreement by Purchaser as well as the execution and delivery of all agreements
and documents pursuant hereto and thereto, and the performance by Purchaser of
its obligations and undertakings hereunder and thereunder have been duly
authorized and approved by the Board of Directors of Purchaser, which approval
constitutes all necessary corporate action on the part of Purchaser to validly
authorize the execution and consummation of this Agreement, and such other
agreements and documents. This Agreement is a valid and binding obligation of
Purchaser, enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will violate or conflict with or result in any breach under any provision
of any agreement or instrument to which Purchaser is a party or is otherwise
bound, or any order, license, permit decree, writ, injunction or judgment of any
court or governmental agency having jurisdiction over the Purchaser or any of
the Assets or Proprietary Rights or any applicable laws or regulations. No
consent or approval of any governmental authority is required in connection with
the execution and delivery of this Agreement by Purchaser or its compliance with
the provisions hereof or thereof.
(c) Brokerage. This Agreement and the transactions
contemplated herein were not brought about by and no brokerage commission or
finder's fee is or will be due to any person or firm.
8. Conditions Precedent to Obligations of Purchaser. The performance of
the obligations of Purchaser under this Agreement is subject to the receipt of
an opinion of Ferrara's counsel dated as of the Closing, in form and substance
reasonably satisfactory to
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counsel for Purchaser, to the effect that:
(i) Ferrara is a corporation validly existing and in good
standing under the laws of the State of Delaware. Ferrara has full corporate
power and authority to execute and perform this Agreement.
(ii) The execution, delivery and performance of this Agreement
on behalf of Ferrara have been authorized by all necessary corporate action, and
this Agreement has been duly executed and delivered by Ferrara, and constitutes
a legal and binding obligation of Ferrara, enforceable in accordance with its
terms;
(iii) The consummation of the transaction contemplated herein
does not violate or result in the breach of the Articles of Incorporation or
By-Laws of Ferrara, nor, subject to the consent of FF&C, does it result in the
breach of any material contract, agreement, lease or commitment of Ferrara nor
does it create a charge upon any of the assets to be transferred.
(iv) The sale of Ferrara's inventories does not substantially
affect the purpose and corporate existence of Ferrara, and does not require
shareholder approval.
(v) The transfer of Ferrara's rights pursuant to the
Assignment of License and Inventory Purchase Agreement does not destroy the
purpose and the corporate existence of Ferrara and the assignment of Ferrara's
distribution rights is not subject to shareholder approval.
(vi) At Closing, Seller will transfer, convey and assign, and
Purchaser will receive, good and marketable title to the License and the Assets
(previously defined to include the inventory and miscellaneous equipment), which
will be free and clear of all liens, mortgages, claims, encumbrances, charges,
agreements or other imperfections of title whatsoever.
9. Consent of FF&C. Anything to the contrary herein notwithstanding,
this Agreement and the assignment of the License contemplated hereby is subject
to the approval of FF&C.
10. Expenses. Each of the parties hereto shall bear all expenses
incurred by it in connection with this Agreement and the consummation of the
transactions contemplated hereby and in preparation hereof, whether or not such
transactions are consummated.
11. Severability. In the event that any provision, or any portion of
any provision, of this Agreement shall be held to be void or unenforceable, the
remaining provisions found void or unenforceable in part only, shall continue in
full force and
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effect.
12. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to its subject matter and
supersedes all prior agreements, representations and understandings of the
parties. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by all the parties. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver or a waiver of any future or past breach or violation of any
such provision or of any other provision. No waiver shall be binding unless
executed in writing by the party making the waiver.
13. Controlling Law. The validity and interpretation of this Agreement,
all schedules hereto and all documents delivered hereunder shall be governed by
and construed in accordance with the internal laws of the State of New Jersey.
14. Notices. Any notice required or permitted to be given hereunder,
shall be deemed to have been given when personally delivered, 24 hours after
delivery to an overnight courier service or 72 hours after deposit in the United
States mails, registered or certified mail, postage prepaid, addressed to the
following parties:
(a) If to Ferrara:
Ferrara Food Company, Inc.
120 Tices Lane
East Brunswick, New Jersey 08816
Attention: Eugene Marfuggi, President
with a copy to:
Gerald A. Adler, Esq.
Loselle Greenawalt Kaplan
Blair & Adler
140 East 45th Street
New York, New York 10017
(b) If to Purchaser:
Colavita Pasta & Olive Oil Corp.
2537 Brunswick Avenue
Linden, NJ 07306
Attention: John J. Profaci, President
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with a copy to:
Joseph R. Profaci, Esq.
2537 Brunswick Avenue
Linden, NJ 07306
Richard Parrino, Esq.
Shaw, Pittman, Potts & Trowbridge
2300 N Street, N.W.
Washington, D.C. 20037
or to such other address as the parties may from time to time designate by
notice to the other.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
FERRARA FOOD COMPANY, INC.
By:
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Eugene Marfuggi, President
COLAVITA PASTA & OLIVE OIL CORP.
By:
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John J. Profaci
President
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EXHIBIT 2(b)
AMENDMENT AGREEMENT
DATED JUNE 19, 1996 BY AND BETWEEN
INTEREQUITY CAPITAL PARTNERS, L.P., LA TORINESE USA, INC.
AND FERRARA FOOD COMPANY, INC.
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AMENDMENT AGREEMENT
Agreement entered into on June 19, 1996 by and between InterEquity
Capital Partners L.P. ("InterEquity"), a Delaware limited partnership with its
principal office at 220 Fifth Avenue, 17th Floor, New York, New York 10001 (the
"Lender"), La Torinese USA, Inc. ("La Torinese"), a Delaware corporation with
its principal office at 17A Cotters Lane, East Brunswick, New Jersey 08816 (the
"Borrower") and Ferrara Food Company, Inc. ("Ferrara"), a Delaware corporation
with its principal office at 120 Tices Lane, Suite C, East Brunswick, New Jersey
08816-2014 (the "Guarantor").
W I T N E S S E T H :
WHEREAS, Ferrara is disposing of certain of its distribution businesses
and requires InterEquity's consent and release of liens and InterEquity will
consent thereto in consideration of an increase in InterEquity's equity
participation in (a) La Torinese represented by a Convertible Note registered in
InterEquity's name and (b) Ferrara represented by a Warrant registered in
InterEquity's name, it is agreed between the parties hereto that:
1. To the extent necessary for Ferrara to consummate an Assignment of
License and Asset Purchase Agreement (the "Colavita Assignment") with Colavita
Pasta & Olive Oil Corp. ("Colavita"), InterEquity hereby agrees irrevocably to
release its security interest against Ferrara with respect to (a) all inventory
being sold by Ferrara to Colavita pursuant to the Colavita Assignment,
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(b) equipment set forth on Exhibit A hereto, (c) all of Ferrara's rights, title
and interest to the License and Asset Purchase Agreement dated July 1, 1991
between Ferrara and Ferrara Food and Confections, Inc. and any and all
modifications thereto, (d) all records relating to the operations of Ferrara's
wholesale grocery business required for the continued operation of the wholesale
grocery business, including, but not limited to, customer lists, supplier lists
and computer presentations, (e) all of Ferrara's rights, title and interest in
all purchase and sales orders and contracts of Ferrara's wholesale grocery
business, (f) all prepaid shelving allowances, slotting fees and supermarket
buy-ins and (g) all proceeds and products of all of the foregoing. InterEquity
shall deliver to Ferrara appropriate UCC-3 forms terminating such security
interests. The filing of such termination statements shall be at the sole cost
and expense of Ferrara.
2. The Amended and Restated Loan Agreement dated as of
March 8, 1996 (the "Existing Loan Agreement") between
InterEquity, La Torinese and Ferrara (and the Convertible Note
referred to therein) is amended as follows:
(i) Section 2(e)(i) - the amount of shares of
common stock of La Torinese the Convertible
Note may be converted to shall be 16.00%
instead of 11.00%,
(ii) Section 2(e)(ii) - the amount of shares of
common stock of La Torinese the Convertible
Note may be converted to shall be 11.00%
instead of 6.00%,
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(iii) Section 2(e)(iii) - the amount of shares of
common stock of La Torinese the Convertible
Note may be converted to shall be 14.00%
instead of 9.00%,
(iv) Section 2(e)(iv) - the amount of shares of
common stock of La Torinese the Convertible
Note may be converted to shall be 16.00%
instead of 11.00%,
(v) Section 2(e)(v) - the conversion percentages
of La Torinese common stock the Convertible
Note may be converted to referred to in
Section e(v) as 6.00%, 9.00% and 11.00%
shall be 11.00%, 14.00% and 16.00%,
respectively, instead,
(vi) Section 3(a) - the amount of shares of
common stock of La Torinese the Warrant
issuable in exchange for the Convertible
Note shall be exercisable for shall be
16.00% instead of 11.00%,
(vii) Section 3(b) - the amount of shares of
common stock of La Torinese the warrant
issuable in exchange for the Convertible
Note shall be exercisable for shall be
11.00% instead of 6.00%,
(viii) Section 3(c) - the amount of shares of
common stock of La Torinese the warrant
issuable in exchange for the Convertible
Note shall be exercisable for shall be
14.00% instead of 9.00%,
(ix) Section 3(d) - the amount of shares of
common stock of La Torinese the warrant
issuable in exchange for the Convertible
Note shall be exercisable for shall be
16.00% instead of 11.00%, and
(x) Section 3(e) - the percentages of La
Torinese common stock the warrant issuable
in exchange for the Convertible Note shall
be exercisable for shall be 11.00%, 14.00%
and 16.00% respectively, (rather than 6.00%,
9.00% and 11.00%, respectively).
The amendments contained in this Section 2 are intended to grant to
InterEquity a 16.00% equity participation in La Torinese
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(subject to adjustment upon the occurrence of certain contingencies set forth in
the Convertible Note or the Warrant issued in exchange for the Convertible
Note). La Torinese and Ferrara shall execute and deliver to InterEquity such
other agreements as InterEquity may reasonably request to effectuate this
understanding of the parties hereto.
3. InterEquity is the holder of a Warrant dated March 8, 1996 (the
"Ferrara Warrant") to purchase 160,000 shares of Ferrara's common stock, par
value $.01 per share (the "Warrant Shares"). The purchase price of the Warrant
Shares of $1.31 per Warrant Share set forth in the first paragraph of the
Ferrara Warrant shall be $.15 instead of $1.31 per Warrant Share.
4. Prior to or simultaneously with the closing of the Colavita
Assignment Ferrara shall pay $200,000 to La Torinese. Ferrara paid $100,000 to
La Torinese on June 14, 1996. To the extent that Ferrara has not previously
contributed to La Torinese at least $200,000 in equity capital, such payments
shall be deemed to be additional capital contributions. Any excess amounts shall
constitute loans the repayment of which shall be subordinated to the loans made
by InterEquity to La Torinese. Such loans shall be on such terms (including
interest rate and repayment schedule) as shall be approved by InterEquity. Until
such approval is given La Torinese shall make no payments of any kind to Ferrara
in respect of such loan, unless all indebtedness of La Torinese to InterEquity
has been paid in full.
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5. Each of Ferrara and La Torinese represents to InterEquity as
follows:
(a) Except as set forth on Exhibit B hereto, each of the
representations made by Ferrara and La Torinese in the Existing Loan Agreement
is true and correct on the date hereof.
(b) This agreement has been duly authorized by all necessary
corporate action of Ferrara and La Torinese, has been duly executed and
delivered by each of them and is valid, binding and enforceable against each of
them, in accordance with its terms.
(c) The balance sheet of La Torinese as of June 14, 1996
attached hereto as Exhibit C, fairly presents the financial position of La
Torinese as of such date in conformity with generally accepted accounting
principles.
(d) True copies of the consents of Banca del Gottardo and
Yardville Bank to this agreement and the taking of all actions contemplated
hereby are attached hereto. Such consents are in full force and effect.
(e) True copies of the Colavita Assignment and the Supply
Agreement between La Torinese and Colavita being entered into on the date hereof
are attached hereto and are in full force and effect.
6. A breach of any of the foregoing representations shall
constitute an Event of Default under the Existing Loan Agreement,
as amended hereby.
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7. Except as amended hereby, the Existing Loan Agreement shall remain
in full force and effect.
8. The estimated legal fees of Lowenthal, Landau, Fischer & Bring, P.
C., counsel for InterEquity, are being paid by La Torinese on the date hereof.
9. La Torinese shall pay the fees and expenses of B.I.S.I. for
consulting service to be rendered in connection with the due diligence required
to enable InterEquity to enter into this agreement and related agreements. La
Torinese is paying on the date hereof a deposit of $5,000 to be applied against
such fees and expenses.
10. Nothing contained in Section 5(a) hereof shall be deemed to be a
waiver by InterEquity of any rights it may have under the Existing Loan
Agreement.
INTEREQUITY CAPITAL PARTNERS L.P.
By: _______________________________
LA TORINESE USA, INC.
By: _______________________________
FERRARA FOOD COMPANY, INC.
By:________________________________
6
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EXHIBIT 2(c)
AGREEMENT DATED AS OF JUNE 19, 1996 BY AND BETWEEN
FERRARA GOOD COMPANY, INC. AND BANCA DEL GOTTARDO
<PAGE>
<PAGE>
AGREEMENT made as of this 19th day of June, 1996, by and between
FERRARA FOOD COMPANY, INC., a Delaware corporation having its principal place of
business at 120 Tices Lane, East Brunswick, New Jersey 08816 (herein "Ferrara")
and BANCA DEL GOTTARDO, a Switzerland corporation having its principal place of
business at Viale Stefano Franscini 8, CH-6901 Lugano, Switzerland ("Gottardo").
WITNESSETH:
WHEREAS, pursuant to a License and Asset Purchase Agreement (the
"License Agreement") dated July 1, 1991 by and between Ferrara and Ferrara Food
and Confections, Inc. ("FFCI"), Ferrara was granted an exclusive license (the
"License") to use the trademarks, service marks, tradename and logos of FFCI in
connection with the importing and wholesale sale and distribution of certain
specialty food products in the continental United States (the "Wholesale Grocery
Business"); and
WHEREAS, pursuant to the License, Ferrara is engaged in the Wholesale
Grocery Business; and
WHEREAS, pursuant to an Assignment of License and Asset Purchase
Agreement (the "Assignment Agreement"), dated as of the date hereof, with
Colavita Pasta & Olive Oil Corp. ("Colavita"), Ferrara is assigning the License
and selling certain of its inventory and equipment to Colavita; and
WHEREAS, in connection with the transactions contemplated by a certain
Note Purchase, Paying and Conversion Agency Agreement dated June 19, 1995 (the
"Note Purchase Agreement") between Gottardo and Ferrara, Gottardo has filed UCC
financing statements with the Secretary of State of New Jersey and the County
Clerk of Middlesex County, New Jersey on all equipment, machinery and inventory
of Ferrara, including all proceeds thereof; and
WHEREAS, Gottardo, subject to the terms and conditions hereof, has
agreed to release its lien on certain of the equipment and the inventory and
proceeds thereof;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. Release of Liens
(a) On the terms and subject to the satisfaction of the
conditions herein set forth, Gottardo shall irrevocably release all of its liens
on the equipment of Ferrara listed on Schedule 1 hereto and on Ferrara's
inventory and all proceeds thereof and authorize LGKBA (as hereinafter defined)
to file UCC-3 Partial Termination Statements with respect thereto to with the
Secretary of State of New Jersey and the County Clerk of Middlesex County, New
Jersey (the "UCC-3 Statements").
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<PAGE>
(b) Anything to the contrary herein notwithstanding, Loselle
Greenawalt Kaplan Blair & Adler, counsel to Ferrara ("LGKBA"), shall hold the
UCC-3 Statements in escrow from the date of the Closing (as hereinafter defined)
until such time as the Second Payment, as hereinafter defined, is remitted to
Gottardo in accordance with the provisions of Section 2 below.
(c) In the event that the Second Payment is provided to
Gottardo by Colavita pursuant to Section 2 hereof within sixty (60) days from
the Closing, Gottardo (or its agent RBLCF (as hereinafter defined)) shall give
written notice thereof to LGKBA and LGKBA shall be authorized to release the
UCC-3 Statements from escrow and file such UCC-3 Statements with the Secretary
of State of New Jersey and the County Clerk of Middlesex County, New Jersey. If
Colavita fails to provide the Second Payment to Gottardo pursuant to Section 2
hereof within sixty (60) days from the Closing, Gottardo (or its agent RBLCF)
may provide written notice thereof to LGKBA, Ferrara and Colavita (the "Breach
Notice") and Ferrara and Colavita shall have ten (10) days from the date of the
Breach Notice to provide written notice to Gottardo, RBLCF and LGKBA (the
"Objection Notice") that it objects to the delivery of the Breach Notice to
LGKBA. If LGKBA does not receive such Objection Notice within such ten (10) day
period, LGKBA shall immediately (and without any further notice to Ferrara and
Colavita) and without any further liability or obligation on its part whatsoever
deliver the UCC-3 Statements to Gottardo (or its agent RBLCF). In such event
Gottardo may destroy said UCC-3 Statements and will have no further liability or
obligation whatsoever to release any lien it may have with respect to any
equipment or inventory or the proceeds thereof identified in this Agreement and
the UCC-3 Statements. In the event that LGKBA receives an Objection Notice from
Colavita and Ferrara prior to the expiration of the ten (10) day period referred
to above, LGKBA shall continue to hold the UCC-3 Statements in escrow pursuant
to the terms and conditions hereof until (i) it receives written notice signed
by both Gottardo and Colavita that the dispute which was the subject of the
Objection Notice has been resolved or (ii) it receives a certified or otherwise
authenticated determination or order of a court of competent jurisdiction
resolving the dispute which was the subject of the Objection Notice.
(d) If Colavita fails to provide the Second Payment to Gottardo within
sixty (60) days from the Closing, Colavita shall pay interest to Gottardo on the
Second Payment at the rate of interest equal to eighteen percent (18%) per
annum, or the highest rate permitted by applicable law, whichever is lower, for
each day following the expiration of such sixty (60) day period until the
payment in full of the Second Payment (and all interest accrued thereon, if
any).
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2. Consideration. As consideration for releasing the liens set forth in
Section 1 above, Ferrara shall (i) issue to Gottardo, on the date hereof,
warrants (the "Warrants") to purchase one million (1,000,000) shares of common
stock of Ferrara exercisable at ten ($.10) cents per share which Warrants shall
be exercisable for a period of eight (8) years from and after the date hereof
and shall be in the form attached hereto as Exhibit 1 and (ii) cause Colavita to
pay Gottardo on Ferrara's behalf Two Hundred Twenty Eight Thousand Five Hundred
($228,500) Dollars which shall be applied to interest on Ferrara's 7%
Convertible Notes of 1995 due June 30, 2000 issued pursuant to the Note Purchase
Agreement for the period ending June 30, 1996, as follows: (x) $40,000 at the
Closing and (y) $188,500 within sixty (60) days from the Closing (the "Second
Payment"). All such payments shall be made by certified or official bank check
payable to the order of Rubin Baum Levin Constant & Friedman ("RBLCF"), as
attorneys for Banca del Gottardo, 30 Rockefeller Plaza, New York, New York
10112.
3. Closing. The consummation of the transactions contemplated by this
Agreement shall take place at a closing at the offices of Ferrara, 120 Tices
Lane, East Brunswick, New Jersey 07036 at 12:00 Noon, Eastern Time on June 19,
1996 or such other time and place as the parties may agree (the "Closing").
4. Representations and Warranties of Ferrara. Ferrara represents and
warrants to Gottardo as follows:
(a) Organization and Standing. Ferrara is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Ferrara has full power and authority to own its property and to carry
on its business as now being conducted. Subject to the approval of FFCI as set
forth in the License Agreement, Ferrara has full power and authority to execute,
deliver and perform its obligations under this Agreement and the Assignment
Agreement.
(b) Authorization. The execution and delivery of this
Agreement and the Assignment Agreement by Ferrara, the assignment and transfer
of the License, equipment and inventory by Ferrara to Colavita pursuant to the
Assignment Agreement, the execution and delivery of all agreements and documents
pursuant hereto and thereto, and the performance by Ferrara of its obligations
and undertakings hereunder and thereunder have been duly authorized and approved
by the Board of Directors of Ferrara, which approval constitutes all necessary
corporate action on the part of Ferrara to validly authorize the execution and
consummation of this Agreement and the Assignment Agreement, and each other
agreement and document provided herein. This Agreement and the Assignment
Agreement are each a valid, legal and binding obligation of Ferrara, enforceable
in accordance with their respective terms. Subject to the approval of FFCI,
neither the execution and delivery of this Agreement or the Assignment Agreement
nor the consummation
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of the transactions contemplated hereby or thereby will violate or conflict with
or result in any breach under any provision of any agreement or instrument to
which Ferrara is a party or is otherwise bound, or any order, license, permit,
decree, writ, injunction or judgment of any court or governmental agency having
jurisdiction over Ferrara, the Wholesale Grocery Business of Ferrara any of the
assets of Ferrara, the License or any applicable laws or regulations. No consent
or approval of any governmental authority is required in connection with the
execution and delivery of this Agreement or the Assignment Agreement by Ferrara
or its compliance with the provisions hereof or thereof.
(c) The authorized capital stock of Ferrara consists of 40,000,000
shares of Common Stock, $.001 par value. As of June 15, 1996, 13,008,648 shares
of Common Stock of Ferrara were issued and outstanding. No other capital stock
of Ferrara is issued and outstanding. All issued and outstanding shares of
capital stock of Ferrara are validly issued, fully paid and non-assessable and
were issued free of preemptive rights and in compliance with all applicable
federal and state securities laws and regulations. Ferrara shall at all times
and at its sole cost and expense reserve and keep available for issue upon the
exercise of the Warrants such number of its authorized but unissued shares of
Common Stock as will be sufficient to permit the exercise in full of the
Warrants (including, without limitation, any exercise in full of the Warrants
following any necessary adjustment to the Warrants as a result of a stock split,
stock dividend, recapitalization, merger, reorganization, consolidation, sale of
assets or other similar event).
5. Entire Agreement. Except as expressly amended hereby, all of the
terms, conditions and provisions of the Note Purchase Agreement, including,
without limitation, all of Ferrara's duties, liabilities and interest and
principal payment obligations thereunder, shall remain in full force and effect
following the execution and delivery of this Agreement by the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver or a waiver of any future or past
breach or violation of any such provision or of any other provision. No waiver
shall be binding unless executed in writing by the party making the waiver.
6. Controlling Law. The validity and interpretation of this Agreement,
all schedules and exhibits hereto and all documents delivered hereunder shall be
governed by and construed in accordance with the internal laws of the State of
New York.
7. Notices. Any notice required or permitted to be given hereunder,
shall be deemed to have been given when personally delivered, 72 hours after
delivery to an overnight courier service or 144 hours after deposit in the
United States mails, registered or certified mail, postage prepaid, addressed to
the following parties:
<PAGE>
<PAGE>
(a) If to Ferrara:
Ferrara Foods Company, Inc.
120 Tices Lane
East Brunswick, New Jersey 08816
Attention: Eugene Marfuggi, President
with a copy to:
Gerald A. Adler, Esq.
Loselle Greenawalt Kaplan
Blair & Adler
140 East 45th Street
New York, New York 10017
(b) If to Gottardo:
Banca del Gottardo
Viale Stefano Franscini 8
CH-6901 Lugano, Switzerland
Attention: Mr. Fabio Testori
Member of the Executive Board
Mr. Hans Gugolz
Member of Management
with a copy to:
Allan M. Rosenbloom, Esq.
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, New York 10112.
(c) If to Colavita:
Colavita Pasta & Oil Corp
2537 Brunswick Avenue
Linden, NJ 07306
Attention: John J. Profaci, President
with a copy to:
Joseph R. Profaci, Esq.
2537 Brunswick Avenue
Linden, NJ 07036
Richard Parrino, Esq.
Shaw, Pittman, Potts & Trowbridge
2300 N Street, N.W.
Washington, D. C. 20037
5
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or to such other address as the parties may from time to time designate by
notice to the other.
7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(THIS SPACE LEFT BLANK INTENTIONALLY)
6
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
Ferrara Food Company, Inc.
By:
-----------------------------
Eugene Marfuggi, President
Banca del Gottardo
By:
-----------------------------
Name:
Title:
Accepted and Agreed in all
respects as of the date hereof:
Colavita Pasta & Olive Oil Corp.
By:
------------------------
John J. Profaci
President
Accepted and Agreed with
respect to Section 1(b) hereof:
Loselle Greenawalt Kaplan
Blair & Adler
By:
------------------------
Gerald A. Adler, Partner
7
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EXHIBIT 2(d)
CONSENT TO ASSIGNMENT DATED JUNE 19, 1996 BY AND BETWEEN
FERRARA FOOD AND CONFECTIONS, INC., FERRARA FOOD COMPANY, INC.
AND COLAVITA PASTA & OLIVE OIL CORP.
<PAGE>
<PAGE>
Consent to Assignment
Consent to Assignment of License dated July 1, 1991 as amended as of
September 30, 1993, between Ferrara Foods and Confections, Inc. as Licensor,
and Ferrara Food Company, Inc., ("Original Licensee") as Licensee (the
"License") to Colavita Pasta & Olive Oil Corp. ("Colavita").
1. Ferrara Foods and Confections, Inc. ("Licensor") hereby consents to
an Assignment by Original Licensee of all its right, title and interest in the
License to Colavita subject to the terms and conditions of this instrument of
Consent. Licensor's consent to this Assignment is not, and shall not be
construed as a waiver of any of the terms of the License and Licensor hereby
reserves any and all of its rights under the License and does not intend hereby
to release the Original Licensee from any obligations under the License.
2. Colavita shall execute an agreement whereby Colavita assumes and
agrees to be bound by all of the provisions of the License and to perform all
of the obligations of Licensee thereunder from the date of closing forward.
Colavita shall not assume any liabilities owed by Original Licensee to Licensor,
whether such liabilities are presently due or deferred, except as expressly
provided in the Assignment.
1
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3. Notwithstanding the Assignment, the Original Licensee shall remain
fully liable for all sums due under the License and for the performance of all
the other obligations of Licensee contained in the License and any future
amendments thereto. Any act or omission of Colavita that violates the License
shall be deemed a violation of the License by the Original Licensee.
4. This Consent shall not be construed as a consent by Licensor to, or
as permitting, any other or further Assignment by either Original Licensee or
Colavita. Notwithstanding anything contained in the License, Assignment and/or
this Consent to the contrary, Colavita shall not, without the prior written
consent of Licensor in each instance, assign the License or this Consent, or any
part thereof.
5. The Original Licensee and Colavita agree that Licensor is not
responsible for the payment of any brokerage commissions, or finder's fees or
similar charges of any nature in connection with this transaction and they each
jointly and severally agree to indemnify and hold Licensor harmless from and
against any claims liability, losses or expenses, including reasonable
attorneys fees incurred by Licensor in connection with any claims for a
commission by any broker or agent in connection with this transaction.
2
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6. Original Licensee and Colavita agree that (i) a fully executed copy
of the Assignment has been furnished to Licensor (ii) Licensor is not a party to
the Assignment and is not bound by the provisions thereof, (iii) Licensor has
not, and will not, review or pass upon any of the provisions of the Assignment,
and (iv) the License will not be modified or amended in any way without the
prior written consent of Licensor. Nothing herein contained shall be construed
as a consent to, or approval or satisfaction by Licensor of any of the
provisions of the Assignment but is merely a consent to the act of Assigning by
Original Licensee to Colavita.
7. The Original Licensee shall discontinue the use of the "Ferrara"
trademark on all products manufactured or sold by them except for products
manufactured for and sold to Colavita for distribution under the License.
8. The Original Licensee shall, at their sole cost and expense, take all
steps reasonably necessary to discontinue the use of the Ferrara name including
the changing of the corporate name at or before the next annual meeting.
3
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9. This Consent May not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any change is sought.
10. Original Licensee and Colavita represent and warrant to Licensor
that no compensation or consideration of any kind other than as set forth in
the Assignment has been, or will be, paid by Colavita to Original Licensee in
connection with the Assignment.
11. This Consent shall not be binding upon Licensor unless and until
it is signed by Licensor.
12. This Consent is conditioned upon Original Licensee delivering to
Licensor (i) a duplicate original of the Assignment and
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as of the 19th day of June, 1996.
FERRARA FOODS & CONFECTIONS, INC.
By: /s/ Alfred Lepore, Pres.
-------------------------------
FERRARA FOOD COMPANY, INC.
ORIGINAL LICENSEE
By:
/s/ E. Marfuggi
-------------------------------
COLAVITA PASTA & OLIVE OIL CORP.
By:
/s/ John J. Profaci
-------------------------------
5
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EXHIBIT 2(e)
SUPPLY AGREEMENT BY AND BETWEEN
LA TORINESE USA, INC., FERRARA FOOD COMPANY. INC.
AND COLAVITA PASTA & OLIVE OIL CORP.
<PAGE>
<PAGE>
SUPPLY AGREEMENT
AGREEMENT made this 19th day of June, 1996 by and between LA TORINESE
USA, INC., ("La Torinese") a Delaware corporation and a subsidiary of FERRARA
FOOD COMPANY, INC., ("Ferrara") and COLAVITA PASTA & OLIVE OIL CORP., a New
Jersey corporation ("Colavita").
WHEREAS, simultaneously with the execution of this Agreement, Ferrara
and Colavita have executed an Assignment of License and Inventory Purchase
Agreement (the "Agreement"); and
WHEREAS, pursuant to the Agreement, Colavita has agreed to enter into a
Supply Agreement pursuant to which Ferrara and/or its subsidiaries, for the term
of this Agreement, shall be the exclusive supplier of Panettone to Colavita, the
brand names of which will be designated by Colavita (the "Product Line"); and
NOW, THEREFORE, the parties hereto agree as follows:
1. La Torinese shall sell to Colavita the Product Line at the prices
set forth on Schedule A hereto, which prices shall be subject to change based
upon negotiations between the parties on an annual basis. La Torinese shall, at
its own cost and expense, maintain packaging material necessary to produce said
products. It is expressly understood that inventories of packaging materials
will not be maintained in unreasonable quantities.
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Colavita agrees to purchase from or reimburse La Torinese for any unused
packaging material in connection with said products. During the term of this
agreement, La Torinese shall be the exclusive supplier of Panettone to Colavita.
Anything to the contrary herein notwithstanding, if a customer of Colavita
requests an Italian panettone product or is unsatisfied with the quality of the
La Torinese panettone product, La Torinese shall purchase panettone product in
Italy and Colavita shall buy such product from La Torinese.
2. Anything to the contrary herein notwithstanding, La Torinese shall
not be responsible for any trademark infringements on any labels for which La
Torinese is manufacturing for Colavita and Colavita agrees to indemnify and hold
La Torinese harmless for any such infringements.
3. Anything to the contrary herein notwithstanding, La Torinese
reserves the right to sell Ferrara label panettone to Club stores until December
31, 1996 and Colavita retains the right to purchase panettone from other sources
under other labels until December 31, 1996. Furthermore, La Torinese shall have
the unrestricted right to sell panettone products under any other label to third
parties.
4. The term of this agreement shall commence on the date hereof and
continue until such time as Colavita is not a licensee
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of Ferrara Foods and Confections, Inc.
5. This agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written,
LA TORINESE USA, INC.
By:_______________________________
COLAVITA PASTA & OLIVE OIL CORP.
By:________________________________
John J. Profaci, President
3
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EXHIBIT 2(f)
SUPPLY AGREEMENT BY AND BETWEEN FERRARA FOOD COMPANY, INC.
AND COLAVITA PASTA & OLIVE OIL CORP.
<PAGE>
<PAGE>
SUPPLY AGREEMENT
AGREEMENT made this 19th day of June, 1996 by and between FERRARA FOOD
COMPANY, INC., a Delaware corporation (Ferrara") and COLAVITA PASTA & OLIVE OIL
CORP., a New Jersey corporation ("Colavita").
WHEREAS, simultaneously with the execution of this Agreement, Ferrara
and Colavita have executed an Assignment of License and Inventory Purchase
Agreement (the "Agreement"); and
WHEREAS, pursuant to the Agreement, the parties have agreed to enter
into a Supply Agreement pursuant to which Ferrara, for the term of this
Agreement, shall be the exclusive supplier of Torrone Nougat Candy to Colavita,
the brand names of which will be designated by Colavita (the Product Line"); and
NOW, THEREFORE, the parties hereto agree as follows:
1. Colavita hereby confers the right to manufacture Italian Torrone
Nougat candies to Ferrara, with the consent of Ferrara Food & Confections, Inc.,
under the Ferrara label or other brands as directed by Colavita.
2. Ferrara shall sell to Colavita the Product Line at the prices set
forth on Schedule A hereto, which prices shall be subject to change based upon
negotiations between the parties on an annual basis. Ferrara shall, at its own
cost and expense,
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<PAGE>
maintain packaging material necessary to produce said products. It is
expressly understood that inventories of packaging materials will not be
maintained in unreasonable quantities. Colavita agrees to purchase from or
reimburse Ferrara for any packaging material not used in connection with said
products. During the term of this agreement, Ferrara shall be the exclusive
supplier of Torrone Nougat Candy to Colavita.
3. Anything to the contrary herein notwithstanding, Ferrara shall not
be responsible for any trademark infringements on any labels for which Ferrara
is manufacturing for Colavita and Colavita agrees to indemnify and hold Ferrara
harmless for any such infringements.
4. The term of this agreement shall commerce on the date hereof and
continue until such time as Colavita is not a licensee of Ferrara Foods and
Confections, Inc.
5. This agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FERRARA FOOD COMPANY, INC.
By: __________________________
COLAVITA PASTA & OLIVE OIL CORP.
By: __________________________
John J. Profaci, President
