were not issued in violation of any preemptive
rights.
Except as set forth in Schedule 3.4(a), there are no options, warrants,
calls, subscriptions, conversion or other rights, agreements or commitments
obligating the Company to issue any additional shares of capital stock or any
other securities convertible into, exchangeable for or evidencing the right to
subscribe for any shares of capital stock of the Company.
No accrued and unpaid
dividends on the Shares have been stripped from the Shares and assigned or
transferred to any Person.
(B)
THE AUTHORIZED CAPITAL STOCK OF COFFEE BEAN CONSISTS OF 1,000
SHARES, ALL OF WHICH ARE DESIGNATED COMMON STOCK, NO PAR VALUE PER SHARE ("CBI
COMMON STOCK").
AS OF THE DATE HEREOF, COFFEE BEAN HAS 100 SHARES OF CBI COMMON
STOCK ISSUED AND OUTSTANDING (THE "CBI SHARES"), ALL OF WHICH HAVE BEEN VALIDLY
ISSUED, ARE FULLY PAID AND NON-ASSESSABLE AND WERE NOT ISSUED IN VIOLATION OF
ANY PREEMPTIVE RIGHTS.
THERE ARE NO OPTIONS, WARRANTS, CALLS, SUBSCRIPTIONS,
CONVERSION OR OTHER RIGHTS, AGREEMENTS OR COMMITMENTS OBLIGATING COFFEE BEAN TO
ISSUE ANY ADDITIONAL SHARES OF CAPITAL STOCK OR ANY OTHER SECURITIES CONVERTIBLE
INTO, EXCHANGEABLE FOR OR EVIDENCING THE RIGHT TO SUBSCRIBE FOR ANY SHARES OF
CAPITAL STOCK OF COFFEE BEAN.
THE COMPANY IS THE SOLE RECORD AND BENEFICIAL
OWNER OF, AND HAS GOOD AND VALID TITLE TO, THE CBI SHARES, FREE AND CLEAR OF ALL
ENCUMBRANCES EXCEPT AS SET FORTH IN SCHEDULE 3.4(B).
3.5
SUBSIDIARIES AND EQUITY INVESTMENTS.
EXCEPT FOR THE CBI
SHARES AND THE FACILITY LLC (THE MEMBERSHIP INTERESTS OF WHICH SHALL BE
TRANSFERRED TO THE HOLDERS OF SERIES A PREFERRED STOCK PURSUANT TO THE TRANSFER
AND REDEMPTION), NEITHER THE COMPANY NOR COFFEE BEAN HAS ANY SUBSIDIARIES OR ANY
DIRECT OR INDIRECT EQUITY OWNERSHIP IN ANY PERSON.
3.6
CONSENTS AND APPROVALS.
EXCEPT AS SET FORTH IN SCHEDULE
3.6, NO FILING OR REGISTRATION WITH, NO NOTICE TO AND NO PERMIT, AUTHORIZATION,
CONSENT OR APPROVAL OF ANY THIRD PARTY OR ANY GOVERNMENTAL BODY IS NECESSARY FOR
THE CONSUMMATION BY THE COMPANY AND COFFEE BEAN OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.
3.7
FINANCIAL STATEMENTS.
(A)
SCHEDULE 3.7(A) CONTAINS COPIES OF THE FOLLOWING FINANCIAL
STATEMENTS (COLLECTIVELY, THE "FINANCIAL STATEMENTS"):
(I)
THE AUDITED CONSOLIDATED BALANCE SHEET OF THE COMPANY AS OF MARCH
25, 2006, AND THE RELATED STATEMENTS OF INCOME, CHANGES IN STOCKHOLDERS' EQUITY
AND CASH FLOWS FOR THE PERIODS THEN ENDED (THE "2006 AUDITED FINANCIAL
STATEMENTS"); AND
(II)
THE UNAUDITED CONSOLIDATED BALANCE SHEET (THE "UNAUDITED BALANCE
SHEET") OF THE COMPANY AS OF MARCH 31, 2007 (THE "BALANCE SHEET DATE") AND THE
RELATED STATEMENTS OF INCOME, CHANGES IN STOCKHOLDERS' EQUITY AND CASH FLOWS FOR
THE PERIODS THEN ENDED (THE "UNAUDITED FINANCIAL STATEMENTS").
19
(B)
THE FINANCIAL STATEMENTS: (I) WERE PREPARED IN ACCORDANCE WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES APPLIED ON A CONSISTENT BASIS ("GAAP")
THROUGHOUT THE PERIODS COVERED THEREBY, EXCEPT AS OTHERWISE NOTED THEREON OR
DISCLOSED IN SCHEDULE 3.7(B); AND (II) PRESENT FAIRLY IN ALL MATERIAL RESPECTS
THE CONSOLIDATED FINANCIAL POSITION AND RESULTS OF OPERATIONS OF THE COMPANY AS
OF SUCH