SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8 KSB
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
November 14, 1997
(Date of Report)
Famous Sam's Group, Inc.
(Exact name of registrant as specified in its charter)
Nevada
(State or other jurisdiction of incorporation)
0 24736 88 0361701
(Commission File Number) (IRS Employer Identification Number)
1999 Broadway, Ste. 3235, Denver, Colorado 80202
(Address of principal executive offices including zip code)
(303) 292 2992
(Registrant's telephone number including area code)
Not Applicable
(Former name or former address, if changed since last report)
Item 1. Change in Control of Registrant.
Acquisition of BioProgress Technology, Inc., as a Wholly Owned
Subsidiary of Registrant:
On October 30, 1997, Famous Sam's Group, Inc., a Nevada corporation
(the Company), entered into a letter of intent with BioProgress
Technology, Inc., a Colorado corporation (BioProgress Technology),
which was followed on November 17, 1997, by a formal agreement (the
Reorganization Agreement). Pursuant to the Reorganization
Agreement, the Company agreed to acquire all of the outstanding
capital stock of BioProgress Technology in exchange for 4,000,000
post split shares of Common Stock. Immediately prior to closing the
Company had reverse split its outstanding capitalization on a one
for five (1:5) basis.
Business of BioProgress Technology:
BioProgress Technology has entered into an Exclusive Distributor
Agreement with BioProgress Technology, Limited, an entity
incorporated in the United Kingdom (the Distributor). The
Distributor is engaged in the development, manufacture, sale and
distribution of materials and processes used to replace gelatin in
the manufacture of soft capsules, as discussed in more detail below.
BioProgress Technology, under this agreement, has been granted the
right to serve as the Exclusive Distributor of the foregoing
products in the United States and Canada, and has agreed to purchase
34,500,000 products over a twelve month period beginning in January
of next year at a price per thousand of $66.00. The volume
purchased will increase by 20% per annum after the first year of the
agreement through the fifth year, by 15% per annum in years six
through ten, 10% per annum in years eleven through 15, and 5% per
annum in years 16 through 20. If this purchase schedule is not met,
BioProgress Technology will lose the exclusive right to distribute
these products, but may not lose its distribution rights altogether,
i.e., it may remain as a non exclusive distributor; however, the
Distributor will then have the right to find another exclusive
distributor in the United States and Canada for the products. The
Distributor remains the sole owner of the technical know how and
intellectual property rights associated with the products.
The Gelatin Capsule Industry and the Opportunity:
BioProgress Technology, as a result of the Exclusive Distributor
Agreement, aims to take commercial advantage of certain external
factors adversely affecting the gelatin industry, particularly soft
gelatin encapsulation, by providing the industry with a cost
effective commercial substitute and flexible manufacturing process
for the gelatin capsule. Gelatin capsules are currently used to
encapsulate a wide range of consumer products, including cosmetics
and dietary supplements. This represents an extremely large and
lucrative market which is urgently seeking a replacement for
gelatin, product under attack on various fronts.
Gelatin is a protein derived from animal renderings, which is used
to encapsulate dietary supplements, oils, cosmetic preparations and,
in some cases, drug delivery systems. The global annual consumption
of gelatin by weight exceeds 210,000 tonnes, of which 21,000 tonnes
are used to produce around 50 billion soft capsule products
annually. Expansion of the encapsulation market into those groups
with religious and ethical concerns about the use of animal derived
materials would open up such markets as the Muslim population which
now stands globally at approximately 935 million, and vegetarians,
of which there are an estimated 29 million in the USA alone.
Currently, these groups are supplied either with hard cellulose
capsules or, in the case of Muslims, with gelatin derived solely
from bones. In addition, the fear of contraction of Bovine
Spongiform Encephalopathy (Mad Cow Disease) from the ingestion of
gelatin based capsules has opened up further opportunities.
Management of the Distributor and BioProgress Technology have
identified weaknesses in the processing requirements and in use
performance of gelatin, and the Distributor has filed a patent
application in respect of a new process using a replacement material
(X Gel TM). In addition, trials of this new process have been
concluded and have proved the principle and commercial viability of
the technology.
BioProgress Technology has landed the contractual right to exploit
the formulation and engineering necessary to perfect an
encapsulation system which does not require the unique properties of
gelatin. Trial manufacturing processes have concluded, and
management believes that the product is now ready for commercial
use, which, under the means proposed, does not require governmental
approval.
New Management:
The Board of Directors, as a result of the BioProgress Technology
acquisition, now consists of one member, Mr. Barry J. Muncaster,
who, it is anticipated, will appoint additional directors in the
near future. Mr. Muncaster is also presently the sole executive
officer of the Company. The following table sets forth all those
persons who are now officers of BioProgress Technology.
Name Position with Company
Barry J. Muncaster Chairman
Malcolm D. Brown Chief Executive Officer
James T.C. Longley Chief Financial Officer
Edward Z. Nowak Director of Research & Development
(1) None of the above individuals has any arrangement or
understanding whereby they are or will be selected as a director or
nominee of the Company or of BioProgress Technology. All directors
and executive officers will hold office until the next annual
meeting of shareholders and until their successors have been elected
and qualified. All officers are elected by the Board of Directors
at its annual meeting immediately following the shareholders' annual
meeting and hold office until their death or until they earlier
resign or are removed from office. There are no written or other
contracts providing for the election of directors or term of
employment of executive officers, all of whom serve on an at will
basis.
Profiles of Directors and Executive Officers of the Company and
BioProgress Technology:
Barry J. Muncaster, Chairman. Mr. Muncaster is Chairman of the
Board of Directors and the sole executive officer of the Company.
He is also Chairman of BioProgress Technology.
Mr. Muncaster trained as a telecommunications engineer with British
Telecom, and obtained a diploma in Telecommunications Engineering
from the Cambridge College of Arts and Technology. Since 1970, Mr.
Muncaster has been involved at executive and senior executive level
with companies engaged in the development and commercialization of
high technology products, which include: laser based systems
employed in high energy physics experiments, electronic taxi meters,
personal computer systems and home banking systems. He was a
cofounder, and served as Chief Executive Officer of Oric Products
International, Limited which, within three years of start up,
manufactured and sold in excess of 300,000 personal computers,
achieving sales revenues in excess of $45,000,000 prior to its sale
in 1983 to an investment company quoted on the London Stock
Exchange.
Since 1987, Mr. Muncaster has been a partner in the Jade
Partnership, a firm of management consultants, which specializes in
assisting developmental companies engaged in high technology
activities. The Jade Partnership was the sole shareholder of
BioProgress Technology and now owns approximately 80% of the
outstanding common stock of the Company.
Malcolm D. Brown, Chief Executive Officer. Mr. Brown is responsible
for the direction and implementation of the research and development
programme of BioProgress Technology, the production engineering of
its products, and for the environmental, safety and performance
compliance of all raw materials used by BioProgress Technology.
Mr. Brown holds a Bachelor of Science Degree (Honors) in Applied
Biology, and a Master of Science Degree in Microbiology.
Prior to cofounding his affiliation with BioProgress Technology, Mr.
Brown held senior research positions with Gestetner Corporation and
with Ferrisgate Limited, where he worked on the formulation of
specialist inks and coatings used in industrial processes.
James T.C. Longley, Chief Financial Officer. Mr. Longley received
an accounting degree with honors from Leeds University, and was
admitted to the Institute of Chartered Accountants in England in
July, 1983, at which time he joined Arthur Andersen & Co., a Big 6
accounting firm, where he worked for two years, attaining the
position of Senior Accountant, Auditing Division. He then served
for three years as a manager in the Merchant Banking Division of
Creditanstahl Bankverein before leaving to join Touche Ross and Co.,
another Big 6 accounting firm, as a senior manager in its corporate
financial division. In 1991, Mr. Longley founded Chapman Longley
Chartered Accountants and Registered Auditors in the United Kingdom,
where, in addition to providing services to a range of clients, he
participated as part of a management team which successfully
completed a 10.5 million pound management buy in within the
manufacturing industry, and also served as the finance director of
The Fleet Management Group Limited which had annual revenues of 18
million pounds during this time.
Edward Z. Nowak, Director of Research & Development. Mr. Nowak has
spent his career in the agrochemical and specialty chemical
industries. After serving as a trainee chemist with Fisons, he
joined Ciba Geigy, where he progressed to Senior Chemist and
finally to Head of the Formulation Group, pioneering new
formulations and processes for products designed for use in crop
protection and animal health. In 1989, Mr. Nowak joined Jeyes Group
plc as Research and Development Manager. As well as being involved
in numerous brand improvements, Mr. Nowak was responsible for
improving the environmental profile of a number of consumer
products. In his last position as European Technical Manager for
Bush Boake Allen Limited, he helped "blue chip" organizations
develop new products to complement their existing branded range.
Consultants to BioProgress Technology:
Dawn M. Franklin. Ms. Franklin served for 21 years as Marketing
Property Manager for Mars, Inc., where she was responsible for the
management, registration and prosecution of intellectual property
and trademarks. She has a very high standing in the international
trademark community and holds the following positions: (i) Member of
Board of Directors of International Trademark Association; (ii)
Chairman of Membership Committee of International Trademark
Association; (iii) Vice Chairman of Public Relations Committee of
International Trademark Association; (iv) Vice Chairman of British
Brands Group; (v) Member of Trademark Committee of AIM (European
Association of Branded Goods Manufacturers); (vi) Delegate
representing AIM at World Intellectual Property Organization (WIPO);
(vii) Member of Committee of Experts on Subject of Famous Marks at
WIPO; (viii) Consultant to WIPO and Member of Committee of Experts
at WIPO on Subject of International Trademark Licensing; and (ix)
Member of MARQUES (Association of European Trademark Proprietors).
Present Capital Structure:
The Company's equity capitalization consists of two classes of
stock, common and preferred. There are 10,000,000 shares of Common
Stock, par value $.01 per share, and 1,000,000 shares of Preferred
Stock, par value $.01 per share, which are authorized to be issued.
All outstanding shares of Common Stock are fully paid for and
nonassessable. A holder of Common Stock is entitled to one vote per
share on all matters submitted for action by the stockholders. A
quorum for the transaction of business at any meeting of the holders
of Common Stock is one third of the shares outstanding. All shares
of Common Stock are equal to each other with respect to the election
of directors; therefore, the holders of more than 50% of the
outstanding Common Stock present at a meeting at which a quorum is
present and at which directors are being elected can, if they choose
to do so, elect all of the directors. Thus, the holders of as
little as 16.51% of the outstanding Common Stock could elect
directors. The terms of the directors are not staggered. Directors
are elected annually to serve until the next annual meeting of
stockholders and until their successor is elected and qualified.
There are no preemptive rights to purchase any additional shares of
Common Stock or other securities of the Company, nor is cumulative
voting applicable to the election of the Board of Directors. The
shares of Common Stock have those dividend rights prescribed by the
laws of the State of Nevada, are not convertible into any other
security, do not have sinking fund provisions applicable to them and
are not subject to redemption or to any restrictions on transfer.
As of November 17, 1997, the transfer ledgers maintained by the
Company's stock transfer agent, including individual participants in
security position listings, indicated that there were approximately
5,000,000 shares of Common Stock issued and outstanding. These were
held more than 2,400 shareholders on that date.
The Articles of Incorporation vest the Board of Directors with the
authority to divide the Preferred Stock into series and to fix and
determine the relative rights and preferences of the shares of any
preferred series established to the full extent permitted by the
laws of the State of Nevada and the Articles of Incorporation with
respect to, among other things, (a) the number of shares to
constitute a series and the distinctive designation thereof, (b) the
rate and preference of dividends, if any, the time of payment of
dividends, whether dividends are cumulative and the date from which
any dividends begin accruing, (c) whether shares may be redeemed
and, if so, the redemption price and the terms and conditions of
redemption, (d) the liquidation preferences payable in the event of
involuntary or voluntary liquidation, (e) sinking fund or other
provisions, if any, for the redemption or purchase of shares, (f)
the terms and conditions upon which shares may be converted, if
convertible, and (g) voting rights, if any. The Company, as of
November 17, 1997, had no Preferred Stock outstanding.
There are no issued or outstanding options, warrants or calls
entitling any person to purchase any shares of Common Stock or other
securities of the Company.
Fidelity Transfer Company, 1800 South West Temple, Suite 301, Salt
Lake City, Utah 84115 has been engaged by the Company to serve as
the transfer agent for the Common Stock.
No dividends have been declared on the Common Stock by the Company
since inception, and no dividends are planned in the foreseeable
future; however, there are no restrictions at present on the
declaration or payment of dividends.
Properties:
The Company, as of the date of this report, owned no real or
personal property, tangible or intangible, other than its ownership
of all of the issued and outstanding common shares of BioProgress
Technology. Conversely, the Company had no liabilities which had
not either been paid in their entirety or fully provided for.
BioProgress , as of the date of this report, was being allowed the
use of office space from its form principal shareholder at St.
John's Innovation Centre, Cowley Road, Cambridge, England.
Management is presently investigating a location for the operations
of the entity in the United States.
Item 2. Acquisition or Disposition of Assets: See Item 1, above.
Item 3. Bankruptcy or Receivership: Not Applicable.
Item 4. Changes in Registrant's Certifying Accountant: Not
Applicable.
Item. 5. Other Events.
In conjunction with the execution and delivery of the Reorganization
Agreement, BioProgress Technology entered into an agreement with the
shareholders of the Distributor which gives BioProgress Technology
the option of acquiring all or any part, on a pro rata basis, of the
issued and outstanding proprietary interest of the Distributor on or
before June 30, 1998. The Company, if an election is made, would be
required to issue one and one half shares of Common Stock for each share
outstanding of BioProgress Technology. BioTechnology has 10,100,000
shares outstanding; thus, if the option were exercised in full, the
Company would issue 15,150,000 shares of Common Stock. On exercise
of this election, BioProgress may have no more than 10,100,000
shares outstanding, and the Company may have no more than 5,000,000
shares of Common Stock issued and outstanding and must have
completed or be in a position to complete the sale of such number of
shares of Common Stock at a price of no less than $5.00 per share so
as to generate no less than $4,000,000 net of all costs.
Item 6. Resignation of Registrant's Directors: Not Applicable.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits: Not Applicable.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
FAMOUS SAM'S GROUP, INC.
(Registrant)
By: /s/ Barry J. Muncaster
Barry J. Muncaster, Chief Executive Officer
Date: December 10, 1997
EXHIBITS
Exhibit 1. Plan and Agreement of Reorganization
PLAN AND AGREEMENT OF REORGANIZATION
under
SECTION 368(b) of the Internal Revenue Code
THIS AGREEMENT has been made and entered into this 14th day of
November, 1997 (the Closing Date), and is by and between, on the
first part, Famous Sam's Group, Inc., a publicly held and traded
Nevada corporation (FSGI), and, on the second part, BioProgress
Technology, Inc., a privately held Colorado corporation (BPTI), and
the sole shareholder of BPTI, The Jade Partnership International,
Inc., a Delaware corporation (JPII). The following premises are an
integral part of this agreement.
1. JPII currently owns all of the outstanding proprietary interest
of BPTI (the BioProgress Shares).
2. JPII desires to transfer and convey the BioProgress Shares to
FSGI in exchange for 4,000,000 post November 3, 1997, reverse split
common shares of FSGI, which FSGI Shares shall aggregate no less
than 80% of the outstanding share capitalization of FSGI after the
transfer and conveyance of the BioProgress Shares to FSGI (the FSGI
Shares).
3. FSGI desires to acquire the BioProgress Shares in exchange
solely for the FSGI Shares.
4. JPII, BPTI and FSGI desire to effect the foregoing conveyances
and transfers of the BioProgress and FSGI Shares on a tax free basis
pursuant to the provisions of Section 368(b) of the Internal Revenue
Code, as the same is presently effective (IRC).
THE PARTIES, THEREFORE, hereby adopt this plan and reorganization
agreement (Agreement) under the aforesaid provisions of the IRC and
further agree as follows:
ARTICLE I
TRANSFER AND CONVEYANCE OF THE BIOPROGRESS AND FSGI SHARES;
RESIGNATIONS
1.1. Transfer and Conveyance. Subject to all of the terms,
conditions, representations, warranties and covenants set forth
herein, JPII hereby transfers and conveys (without reservation and
free and clear from all encumbrances) to FSGI the BPTI Shares and
FSGI hereby transfers and conveys (without reservation and free and
clear from all encumbrances) to JPII the FSGI Shares.
1.2. Resignation of FSGI Directors and Officers. The current
members of the board of directors of FSGI have appointed Mr. Barry
J. Muncaster to the board and, subsequently, have resigned all
positions which they had with FSGI, releasing FSGI from any further
compensation for their services.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. Representations and Warranties of FSGI. FSGI represents and
warrants to JPII and BPTI, jointly and severally, as of the Closing
Date as follows:
(a) All necessary action has been taken to make this Agreement a
legal, valid and binding obligation of FSGI enforceable in
accordance with its terms and conditions.
(b) The execution and delivery of this Agreement and the
performance by FSGI of its obligations hereunder will not result in
any material breach or violation of or material default under any
material agreement, indenture, lease, license, mortgage, instrument,
or understanding, nor result in any violation of any law, rule,
regulation, statute, order or decree of any kind, to which FSGI or
any of its affiliates is a party or by which they or any of their
property is or may be or become subject, nor in the violation of the
articles or bylaws governing the conduct of FSGI.
(c) FSGI has delivered to BPTI and JPII its annual report on Form
10 KSB (and the amendment thereto on Form 10 KSB/A) for the year
ended December 31, 1996, and its quarterly reports on Form 10 QSB
for the fiscal quarters ended March 31, 1997, June 30, 1997, and
September 30, 1997, all of which were true and correct as of the
date of filing and remain true and correct in all material respects
as of the date hereof, with the exception that all liabilities of
FSGI have been satisfied through the issuance of approximately
920,000 post November 3, 1997, reverse split FSGI common shares
prior to the delivery of the FSGI Shares. Also, FSGI has provided
to BPTI and JPII full access to any and all information it desired
concerning the business and operations of FSGI, and FSGI has made
available to BPTI and JPII such personnel as has been requested to
answer any and all questions which BPTI and JPII may have had
concerning its investment in FSGI. Further, FSGI is current in all
of its required reports under the Securities Exchange Act of 1934,
as amended.
(d) The FSGI Shares have each been validly issued and are fully
paid for and nonassessable.
(e) The FSGI Shares are not and shall not be or become subject to
any lien, encumbrance, security interest or financing statement
whatsoever. Further, the FSGI Shares are not the subject of any
other agreement in regards thereof.
(f) The FSGI Shares represent 80% of the outstanding proprietary
interest of FSGI, and there are no outstanding commitments (direct
or indirect) which would cause the issuance or transfer out of
treasury of any additional proprietary interest of FSGI, whether
common stock, preferred stock or debt.
2.2 Representations and Warranties of BPTI and JPII. BPTI and JPII
each hereby represents and warrants, jointly and severally, to FSGI
as of the Closing Date as follows:
(a) All necessary action has been taken to make this Agreement a
legal, valid and binding obligations of BPTI and JPII enforceable in
accordance with its terms and conditions.
(b) The execution and delivery of this Agreement and the
performance by BPTI and JPII of their respective obligations
hereunder will not result in any material breach or violation of or
material default under any material agreement, indenture, lease,
license, mortgage, instrument, or understanding, nor result in any
violation of any law, rule, regulation, statute, order or decree of
any kind, to which either BPTI and/or JPII or any of their
respective affiliates is a party or by which they or any of them or
any of their property is or may be or become subject, nor in the
violation of the articles or bylaws governing the conduct of either
BPTI or JPII.
(c) The BPTI Shares have each been validly issued and are fully
paid for and nonassessable.
(d) The BPTI Shares are not and shall not be or become subject to
any lien, encumbrance, security interest or financing statement
whatsoever. Further, the BPTI Shares are not the subject of any
other agreement in regards thereof.
(e) The BPTI Shares represent 100% of the outstanding proprietary
interest of BPTI, and there are no outstanding commitments (direct
or indirect) which would cause the issuance or transfer out of
treasury of any additional proprietary interest of BPTI, whether
common stock, preferred stock or debt.
(f) The sole asset of BPTI is the Exclusive Distribution Agreement
dated even date herewith by and between BioProgress Technology,
Limited, an English entity, and BPTI. BPTI has no other assets or
liabilities of any kind.
(g) JPII and BPTI have provided to FSGI full access to any and all
information it desired concerning the business and operations of
JPII and/or BPTI, and JPII and BPTI have made available to FSGI such
personnel as has been requested to answer any and all questions
which FSGI may have had concerning its investment in BPTI.
2.3 Understandings of FSGI. FSGI acknowledges, understands and
agrees that:
(a) JPII and BTPI make no warranties (expressed or implied)
regarding the value or potential value of the Exclusive Distribution
Agreement between BPTI and BioProgress Technology Limited.
(b) In order to fully maximize the benefit, if any of the Exclusive
distribution Agreement, additional and substantial funds may be
required, all of which are the responsibility of FSGI.
2.4 Understandings of JPII. JPII acknowledges, understands and
agrees that:
(a) The certificate representing the FSGI Shares will bear a legend
restricting its transfer under Rule 144 of the Securities Act of
1933, as amended, and will be issued solely in the name of JPII.
(b) The FSGI Shares have not been registered under the Securities
Act of 1933, as amended, or any applicable state law (collectively,
the Securities Act); further, the FSGI Shares may not be sold,
offered for sale, transferred, pledged, hypothecated or otherwise
disposed of except in compliance with the Securities Act; further,
FSGI has no obligation, and does not intend, to cause the FSGI
Shares to be registered under the Securities Act, or to comply with
any exemption under the Securities Act that would permit a sale or
sales of all or any portion of the FSGI Shares; further, the legal
consequences of the foregoing mean that JPII must bear the economic
risk of the investment in the FSGI Shares for an indefinite period
of time; and, further, if JPII desires to sell or transfer all or
any part of the FSGI Shares within the restricted period, FSGI may
require JPII's counsel to provide a legal opinion that the transfer
may be made without registration under the Securities Act.
(c) No federal or state agency has made any findings or
determination as to the fairness of an investment in FSGI, or any
recommendation or endorsement of this investment.
(d) There is presently only an extremely limited market for the
FSGI Shares and no market may exist in the future for any sale or
sales of all or any portion thereof.
(e) Its commitment to investments that are not readily marketable
is not disproportionate to its net worth, and its investment in the
FSGI Shares will not cause such overall commitment to become
excessive.
(f) It has the financial ability to bear the economic risks of its
investment, has adequate means of providing for its current needs,
and has no need for liquidity in this investment.
(g) It has evaluated the high risks of investing in the FSGI Shares
and has such knowledge and experience in financial and business
matters in general and in particular with respect to this type of
investment that it is capable of evaluating the merits and risks of
an investment in the FSGI Shares.
(h) It has been given the opportunity to ask questions of and
receive answers from FSGI concerning the terms and conditions of
this investment, and to obtain additional information necessary to
verify the accuracy of the information it desired in order to
evaluate its investment, and in evaluating the suitability of an
investment in the FSGI Shares has not relied upon any
representations or other information (whether oral or written) other
than that furnished to it by FSGI or the representatives of FSGI.
(i) It has had the opportunity to discuss with its professional,
legal, tax and financial advisers the suitability of an investment
in the FSGI Shares for its particular tax and financial situation
and all information that it has provided to FSGI concerning itself
and its financial position is correct and complete as of the date
set forth below.
(j) In making the decision to purchase the FSGI Shares it has
relied solely upon independent investigations made by it or on its
behalf.
(k) It is acquiring the FSGI Shares solely for its own account, for
investment purposes only, and is not purchasing with a view to, or
for, the resale, distribution, subdivision or fractionalization
thereof, other than the possible distribution of said shares to the
shareholders of JPII.
ARTICLE III
MISCELLANEOUS
3.1. Entire Agreement; Modification. This Agreement sets forth and
constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof, and supersedes any and all
prior agreements, understandings, promises, warranties, covenants
and representations made by any party to the other concerning the
subject matter hereof and the terms applicable hereto. This
Agreement may not be released, discharged, amended or modified in
any manner except by an instrument in writing signed by duly
authorized representations of the parties hereto.
3.2. Severability. The invalidity or unenforceabilty of one or
more provisions of this Agreement shall not affect the validity or
enforceability of any of the other provisions hereof, and this
Agreement shall be construed in all respects as if such invalid or
unenforceable provisions are omitted.
3.3. Governing Law. This Agreement shall be deemed to have been
entered into and shall be construed and enforced in accordance with
the laws of the State of Nevada.
3.4. Waivers. The failure of any party hereto to insist, in any
one or more instances, upon the performance of any of the terms,
covenants or conditions of this Agreement or to otherwise exercise
any right hereunder, shall not be construed as a waiver or
relinquishment of the future performance of any such term, covenant
or condition or the future exercise of such right, but the
obligations of the party with respect to such future performance
shall continue in full force and effect.
3.5. Headings. The headings in the articles, section and
paragraphs used in this Agreement are included for convenience only
and are not to be used in construing or interpreting this Agreement.
3.6. Notice. All notices, demands, or requests hereunder shall be
in writing and served either personally, by certified mail, return
receipt requested, by Federal Express or other reputable overnight
courier, or by facsimile, as follows:
If to FSGI:
Famous Sam's Group, Inc.
c/o Mr. Mark S. Pierce
1999 Broadway, Ste. 3235
Denver, CO 80202
(303) 292 2882: FAX
If to JPII or BPTI:
9055 Huntcliff Trace
Atlanta, GA 30350
(770) 594 8613: FAX
3.7. Successor and Assigns. This Agreement, and each and every
provision thereof, shall be binding upon and shall inure to the
benefit of the parties, their respective successors,
successors-in-title, heirs and assigns, and each and every
successor-in-interest to any party, whether such successor acquires
such interest by way of gift, purchase, foreclosure, or by any other
legal method, who shall hold such interest subject to all the terms
and conditions of this Agreement.
3.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute one and the same instrument.
3.9. Attorneys' Fees. In the event of any dispute with respect to
this Agreement, the prevailing party shall be entitled to its
reasonable attorneys' fees and other costs and expenses incurred in
resolving such dispute.
3.10. Expenses. Each party shall pay the expenses incurred by them
under or in connection with this Agreement, including counsel fees
and expenses of their respective representatives.
3.11. Survival of Representations, Warranties and Covenants. The
representations, warranties and covenants of FSGI, BPTI and JPII
contained in this Agreement shall survive the execution hereof, and
shall be unaffected by any investigation made by any party at any
time.
3.12. Further Assurances. At any time and from time to time after
the date of this Agreement, each party shall execute such additional
instruments and take such other and further action as may be
reasonably requested by any other party or otherwise to carry out
the intent and purpose of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered the date first above written.
FAMOUS SAM'S GROUP, INC., a Nevada corporation (FSGI)
By: /s/ Mark S. Pierce
Mark S. Pierce, President
BIOPROGRESS TECHNOLOGY, INC., a Colorado corporation (BPTI)
By: /s/ Barry J. Muncaster
Barry J. Muncaster, President
THE JADE PARTNERSHIP INTERNATIONAL, INC., a Delaware corporation
(JPII)
By: /s/ Barry J. Muncaster
Barry J. Muncaster, President
