EXHIBIT-10.46
SHARE TRANSFER AGREEMENT
This Agreement was entered into on this 27th November 2000 in Warsaw by and
between:
1. International Fast Food Corporation, an American company with its
registered office in Miami Beach, 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
00000, XXX, represented by Xxxxxx Xxxxxxxx on the basis of the power of
attorney attached hereto as an Exhibit No 1, hereinafter referred to as the
Seller,
and
2. American Restaurants Sp. z o.o. with its seat in Wroclaw, at Xxxxx Xxxxx -
Sklodowska 1, entered into commercial register of the District Court for
Wroclaw under no. RHB 9262 represented by Parvek Xxxxxxx based on the power
of attorney granted by Xxxxxx Xxxxxxxxxxxx and Xxxxx XxXxxxxx--members of
the management board on the basis of the excerpt from the commercial
register (power of attorney and excerpts from commercial register attached
hereto as an Exhibit No 2), hereinafter referred to as the Purchaser,
and
3. International Fast Food Polska Spolka z ograniczona odpowiedzialnoscia with
its registered office in Warsaw xx. Xxxxxxxxxxxx 00 entered into the
commercial register kept by the District Court for the city of Warsaw XVI
Economic Registration Division under RHB No 32513, represented by Xxxxxx
Xxxxxxxx - commercial attorney of Company, hereinafter referred to as the
Company.
ss. 1
1. The Seller warrants and declares that he owns one share ("the Share") of
the nominal value of 90.106.980,43 PLN (ninety million one hundred and six
thousand nine hundred and eighty zlotys and forty three groszy) in the
share capital of International Fast Food Polska Spolka z ograniczona
odpowiedzialnoscia with its registered office in Warsaw xx. Xxxxxxxxxxxx 00
entered into the commercial register kept by the District Court for the
city of Warsaw XVI Economic Registration Division under RHB No 32513,
(,,the Company"). 2. The Seller represents that the Share is free and clear
of any claims, charges, pledges and/or encumbrances. Further, the Seller
represents that the Share constitutes 100% of the Company's share capital.
ss. 2
1. The Seller represents that no approval of the Company's Shareholders'
Assembly is required for transfer of the Share.
2. The Seller further represents that the Seller received all internal
corporate approvals for transfer of shares.
ss. 3
1. The Seller hereby sells and the Purchaser hereby buys the Share for
2.000.000 USD (two million US dollars) ("the Price") subject to increase or
decrease as described in ss. 7
2. Purchase price will be paid as follows:
a) Within 2 (two) business days of execution of the Agreement of
Release from Burger King Corporation ("BKC") in the form agreed
by Purchaser, the Purchaser shall initiate the payment via swift
wire transfer to the Seller's account of 1,000,000 USD (one
million USD). If Purchaser fails to pay this amount on time,
Purchaser shall pay to Seller 5.000 USD (five thousand US
dollars) as contractual interests for each day of delay.
For the purposes of this transaction, Agreement of Release shall
mean any and all documents, agreements, statements or combination
of such documents necessary to provide the Purchaser with the
following:
-- A release by BKC of any First Rights of Refusal to
purchase shares or assets in the Company;
-- A release from any and all obligations arising from any
existing franchise or development agreements between
the Company and BKC;
-- A release from any and all obligations arising from the
BKC Development Agreement;
-- The Development Agreement and BKC Franchise Agreements
shall be terminated upon closing, with no further
obligations to the Purchaser except those mentioned
above.
The Purchaser and Seller hereby agree to make best efforts to
ensure that the Agreement of Release is issued and executed.
Purchaser further agrees to initiate the payment to BKC via wire
transfer of the sum of $ 333,500 (three hundred thirty three
thousand five hundred USD) within 2 business days after execution
of the Agreement of Release and after the execution of this
Agreement, in final payment for all amounts of money due BKC by
the Company and the Seller. If ownership title to the Share is
not transferred to the Purchaser of the Share, then Seller agrees
to pay back Purchaser for the amount of $ 333,500.
b) Within 7 business days after statement of non-objection to
the merger is issued by the President of the Office for
Competition and Consumer Protection and delivered to any of
the Parties, the Purchaser shall initiate swift wire
transfer to the Seller of 800.000 (eight hundred thousand US
dollars) USD. If Purchaser fails to pay this amount on time,
Purchaser shall pay to Seller 5.000 USD (five thousand US
dollars) as contractual interests for each day of delay. The
full $ 800,000 under this provision shall not be subject to
any offsets of any nature whatsoever. Same interest shall
apply to payment described in point c) below.
c) Starting from receipt of Agreement of Release Purchaser
shall conduct due diligence of the Company not to exceed 90
days. At the end of this 90 (ninety) days due diligence
period the Purchaser shall pay to the Seller 200.000 USD
less any discovered unrecorded liabilities incurred prior to
November 1,2000 and to the extent that Due Debts mentioned
in par 7 exceed given there amount and are paid by the
Purchaser.
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ss. 4
1. The ownership right of the Share shall pass to the Purchaser as soon as
(automatycznie) and not earlier than all the "conditions precedent"
(warunki zawieszajace) mentioned below have been fulfilled:
a) The Parties shall receive the Agreement of Release as described in
par.3.2a) above. Should the Agreement of Release not be issued within
14 days from executing this transaction Seller shall have the right to
terminate this agreement by notice in writing having immediate effect
upon delivery to Purchaser. Should the Agreement of Release not be
issued within 90 days from executing this transaction Purchaser shall
have the right to terminate this agreement by notice in writing having
immediate effect upon delivery to Seller. The Purchaser and Seller
hereby agree to make best efforts to ensure that Agreement of Release
is issued and executed.
b) Seller received first part of the purchase price as described in art
3.2a.
c) Not later than 4 (four) months starting from the date of this
Agreement, both Purchaser and the Company shall procure that a
statement of non-objection to the merger is issued by the President of
the Office for Competition and Consumer Protection. Should the
Purchaser fail to notify the President of the Office for Competition
and Consumer Protection of the projected merger within 21 days
starting from the date of execution of this Agreement, the Purchaser
shall pay to the Seller contractual penalty amounting to 5.000 (five
thousand US dollars) USD for each day of delay beyond 21 days. Should
the Company fail to notify the President of the Office for Competition
and Consumer Protection of the projected merger within 21 days
starting from the date of execution of this Agreement, the Company
shall pay to the Purchaser contractual penalty amounting to the
equivalent in PLN of 5.000 (five thousand US dollars) USD for each day
of delay beyond 21 days. The parties hereby agree to cooperate in good
faith during the procedure of getting the permit from the President of
the Office for Competition and Consumer Protection.
d) Seller received second part of the purchase price as described in par.
3.2.b
2. Should the statement of non-objection mentioned in section 1 c)
above be not issued within four months starting from the date of
this Agreement, the Parties hereto shall negotiate in good faith
another way of transferring the Share or the Company to the
Purchaser or a third party indicated by the latter, such transfer
not to require the said statement of non-objection, provided
however that such negotiations cannot lead to infringement of
Polish regulations on protection of competitions or to avoidance
of the law. Seller and the Company hereby agree that they will
not sell, encumber, pledge or dispose in any other way of the
Share or material asset of the Company, within the period of
negotiations, not to exceed 6 (six) months, without the prior
written consent of the Purchaser which consent shall not be
unreasonably withheld.
3. Seller will not be obliged to return to the Purchaser any amounts
received hereunder unless the Seller sells the Share to another
Party or if the transfer of ownership of the Share does not occur
due to reasons for which Seller is responsible.
4. If conditions precedent listed in section 1 above are not jointly
fulfilled within the period of 12 months and none of the parties
terminates this Agreement, this Agreement will automatically
expire.
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5. The obligations of the Purchaser resulting from this Agreement
shall be covered by the guarantee issued by Amrest Holdings N.V.
to the extent described in said guarantee. The guarantee
constitutes Exhibit 18.
ss. 5
1. The Seller represents that he has a claim towards the Company amounting to
848.045USD ("IFFP Debt"). The parties hereto have entered into a contract,
by virtue of which IFFP Debt is to be transferred to the Amrest Holdings
N.V. subject to the transfer of the ownership of Share mentioned herein. In
the aforementioned contract the Seller releases the Company from any
financial claims towards the Seller other than IFFP Debt and Company
releases Seller from any debts in particular debts resulting from any loans
which have not been fully remitted to the Company. The aforementioned
contract constitutes Exhibit 4 hereto. The Seller represents that there are
no further claims against the Company, and if there are claims, they are
hereby forgiven.
2. The Seller declares that he has entered into a contract, by virtue of which
a third party designated by Seller shall acquire from the Company the
Company's claim against Pizza King Polska Spolka z ograniczona
odpowiedzialnoscia with its registered office in Warsaw, Poland ("PKP")
amounting to 1.980.635 PLN ("PKP Debt"), such acquisition to be subject to
the transfer of the ownership of the Share. Such contract of acquisition
constitutes Exhibit 5 hereto. The Purchaser declares that he will not
question the validity and effectiveness of such acquisition.
ss. 6
1. The Seller informs that PKP uses some of the equipment, software and the
office space of the Company as described in Exhibit no 6.
2. The Purchaser does hereby commit himself to allow for the use of the
aforementioned equipment, software and office space in the same manner as
now for six months following the transfer of ownership right of the Share
as described in Exhibit no 6 above.
ss. 7
1. The Seller warrants that as of October 31,2000 Total Liabilities
(liabilities as marked in RED in Exhibit 7) minus the sum of cash as noted
in Exhibit 7, VAT receivable balance as of October 31, 2000 collected post
October 31, 2000 through 1 year from the signing of this agreement and
accounts receivable collected post October 31, 2000 through 1 year from the
signing of this agreement , the value of inventory, other current assets
and prepaid expenses on Exhibit 7 used or sold post October 31,2000 through
1 year from the signing of this agreement (the result of such calculations
shall hereinafter be referred to as Due Debts) will not exceed 3.000.000
(three million US dollars) USD. To such extent that Due Debts do total more
than 3.000.000 (three million US dollars) USD the Seller shall be
responsible for them and shall reimburse the Purchaser within 30 days of
receipt of proof, not earlier than payment as described in paragraph 3.2b.
has been made. Payment to Purchaser shall solely be from the $ 200,000
reserve fund in paragraph 3.2c and after that fund is extinguished upon
demand on the guarantee of PKP as Exhibit --. Guarantee shall expire upon
sale of PKP to third party or after one year whatever occurs first. The
Purchaser agrees that under no circumstances is the Seller directly
responsible but only through the $ 200,000 reserve fund and the guarantee
of PKP as stated above.
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2. Should, within one year from the date of this agreement, Due Debts prove to
be less than 3.000.000 USD minus the Amerbank Loan or should the Company
pay less than 3.000.000 USD minus the Amerbank Loan to its creditors whose
claims make up this amount, the Purchaser shall pay to the Seller half of
the difference between the amount mentioned and the actually paid amount.
3. Should, within the due diligence period any unrecorded liabilities arise to
the extent that Due Debts exceed 3.000.000 USD Purchaser shall have the
right to decrease the amount specified in par 3.2c) by the amount exceeding
3.000.000 USD. Should, within one year from the date of this agreement, Due
Debts prove to be more than 3.000.000.USD, and the Purchaser is capable of
proving that Due Debts exceed 3.000.000 USD and the difference was paid by
the Purchaser, the Purchaser may demand from the Seller the repayment of
the difference to the extent that amount specified in par 3.2c was not
decreased. They want PKP to guarantee the balance, if any.
4. The Purchaser shall submit quarterly to the Seller a statement of the
amounts paid to the Company's creditors, such statements to be signed by
the persons authorized to represent the Purchaser and provide which
liabilities making the amount of 3.000.000 USD were actually paid.
5. The Purchaser is obliged after acquisition of title to the Share to make
available to the auditors indicated by the Seller any and all financial
documents of the Company. Should the Purchaser fail to comply with the
aforementioned obligation within 14 days from Seller's notice in writing
delivered after the lapse of one year, the Purchaser shall pay contractual
penalty amounting to 1.000 USD (one thousand US dollars) for each day of
delay. This obligation expires 14 months after acquisition of the Share.
ss. 8
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
1. Each Party hereby represents and warrants to all of the other Parties that:
(a) it has full power to enter into this Agreement and that the persons
signing this Agreement on behalf of such Party are duly authorized to bind
such Party in the performance of this Agreement; (b) the execution and
performance of this Agreement by such Party will not constitute a default
under any agreement or commitment to which such Party is a party, or
violate any administrative decision, judgement, decree or award by which
such Party is bound; and (c) this Agreement has been duly authorized,
executed by such Party and approved by such Party's respective governing
bodies, and constitutes the legal, valid and binding obligation of such
Party, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other similar laws relating to or affecting the
enforceability of creditors' rights generally.
2. The Parties hereby confirm that the Purchaser and Seller decide to enter
into this Agreement in reliance on the representations made and warranties
given by the other Party in this Agreement and that without such
representations and warranties any party would not have entered into this
Agreement.
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ss. 9
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE COMPANY
1. In connection with the par 8 section 2, the Seller and the Company hereby
represents and warrants to the Purchaser the following:
(a) all the documents and written information made available by the
Company and the Seller, their employees, agents and advisors,
represent a complete, true and fair view of the operations as well as
the financial and legal position of the Company and the Seller; in
particular there exist no known documents or information not presented
to the Purchaser, their representatives or advisors regarding
circumstances which could have a material adverse effect on the
operations or the financial or legal position of the Company;
(b) the Company is duly incorporated, validly existing under the laws of
Poland, is and has been since its incorporation duly licensed,
permitted and qualified to conduct its business in Poland and the
establishment of the Company was performed in accordance with the laws
of Poland;
(c) the Seller is duly incorporated and validly existing under the laws of
Florida, and there are no pending or threatened bankruptcy,
liquidation or settlement with creditors proceedings relating to
Seller
(d) the share capital has been paid in accordance with the provisions of
the Polish Commercial Code except for the amount of approximate
120.000 USD of the in-kind contribution. In return for unpaid
contribution Seller forgave equal amount of the loan granted to the
Company. The current excerpt from the share register of the Company is
attached hererto as Exhibit B,
(e) the entire share capital of the Company is free of any encumbrances
and clear of any claims, validly issued save section d) above, and
free of any third party's rights;
(f) the Company has no Supervisory Board;
(g) no consent or authorization or filing with any governmental authority
is required in connection with selling the Share in the Company by the
Purchaser, except for the notification to the President of the Office
for the Competition and Consumer Protection;
(h) the Company received required licenses and permits to conduct its
operations;
(i) As of October 31,2000 Due Debts of the Company do not exceed 3.000.000
USD except for the liabilities resulting from the loans stipulated in
the attached assignment of claims between IFFC and Amrest Holding
N.V.;
(j) the Company is not an owner or perpetual usufructuary of any real
estate located in the territory of Poland or abroad;
(k) the Company does not use any property of a state owned person under
any title under any agreement longer than 6 months;
6
(l) the Company is not obliged to transfer or encumber, gratuitously or
non-gratuitously, any element of its property to any third person as
of today or in the future, except for donation promised to one of the
Municipalities at the amount of --- PLN as described in Exhibit 9;
(m) the Company does not own shares or partnership interest in any company
or partnership, except CRSB Sp. z o.o. and Krolewski Hamburger -
Polska Sp. z o.o. who's deed of association and commercial register
extracts are attached hereto as Exhibits 10 and 11 ;
(n) the Company is not in infringement of any industrial and intellectual
property rights of other persons,
(o) the Company observes its employee's rights and obligations in
compliance with all internal, local, regional and national labor laws
(including the Safety and Hygiene at Work provisions);
(p) there is no litigation and administrative proceedings to which the
Company is a party and there are no other litigation matters
(including arbitration), claims, proceedings or investigations pending
or threatened against the Company (including proceedings connected
with protection of the environment pending against the Company or
caused by the motion of the Company) other than what is listed on
Exibit --;
(r) there are no custom matters pending against or threatening to the
Company before custom authorities or before the Supreme Administrative
Court;
(s) the Company is not in default with respect to any order issued by any
court, governmental authority or arbitration board or tribunal to
which the Company is a party or is subject to, and the Company is not
in violation of any laws, ordinances, governmental rules or
regulations which it is subject to (including environmental laws);
(t) the Company prepared and filed prior to the time when due all
appropriate local and national authorities all tax and social security
returns and other reports required to be filed by the Company prior to
the date hereof, which tax returns and reports were correctly prepared
and consistent with the financial statements of the Company, and the
Company has paid all due taxes, including interest and penalties, in
respect of all periods covered by such return. The Company is not a
party to any pending action or proceedings instituted by any
governmental authority for assessment or collection of taxes other
than set forth on Exhibit --. All taxes which the Company is required
by law to withhold or collect, have been duly withheld or collected
and have been timely paid over to the proper governmental authorities
or properly held by the Company for such payment;
7
(u) no administrative fees or costs are due and the Company is not a party
to any pending or threatened action by any governmental authority
which can result in payment of any such administrative fees or costs;
(v) the Company is not a party of any binding agreement or preliminary
agreement which could create obligation to the Company to sell the
Enterprise or any part of the Company to any third person;
(w) The Seller is not a party of any agreement or preliminary agreement
obliging the Seller to dispose (including donation) the Share in the
Company;
(x) the Company has not granted any guarantees and has not issued any
bills of exchange, created any charges over its current or future
assets and is not liable for any debts of any third parties, excluding
those listed in Exhibit 12;
(y) No long-term contracts of more than 3 months were signed, excluding
those listed in Exhibit 13;
(z) There are no transactions and agreements between the Company and (i)
Company shareholders, (ii) members of the Management Board of the
Company, (iii) any party related to the persons specified in clauses
(i) and (ii) which can create obligation of the Company at the moment
and can create them in the future excluding other than already
revealed to the Purchaser according to this Agreement;
(aa) Exhibit 14 constitutes the true and complete list of all material
transactions, agreements and contracts to which the Company is a
party, all liens, encumbrances, assignments or pledges of any of the
Company's property whether personal, tangible or intangible personal
property; All these documents are in full force and effect and the
Company is not aware that any party thereto is, in breach or default
thereof;
(bb) The Seller and Company hereby warrant that there has been no material
change in financial condition of the Company from November 1st, 2000
audit till today other than incurred in the normal course of business.
3. The Seller declares, that while executing the rights of the Shareholders
Assembly of the Company starting from the day of signing this Agreement
shall not adopt any resolution, which will change the current financial and
legal status of the Company without prior written consent of the Purchaser,
in particular shall not decrease the capital of the Company, redeem the
share or dismiss Member of the Management Board. Seller grants hereby the
Purchaser the power of attorney to execute all necessary rights of
Shareholders Assembly of the Company. Following the receipt the above
mentioned power of attorney the Purchaser declares, that while executing
the rights of the Shareholders Assembly of the Company shall not adopt any
resolution, which would result in harm to the Company or Seller.
8
4. During the validity of this Agreement the Seller undertakes not to enter
into any agreement by which the Seller would sell, dispose, encumber,
pledge or donate the Share or would be obliged to do so.
5. The Seller guaranties to the Purchaser the right of first refusal to
purchase the shares held by IFFC in Pizza King Polska Sp. z o.o. domiciled
in Warsaw, Poland (prawo pierwokupu) for the period of 12 months from the
date of signing this Agreement. The right of first refusal shall be
exercised in accordance with Polish Civil Code with the exception that the
Purchaser shall have 21 days after notification of the sale agreement to
exercise its right of first refusal.
6. The representations and warranties described in par. 9.1 a) - 9.1 aa) are
subject to materiality as described in par 15.
7. Representations and warranties regarding the Share in particular those
described in ss. 1 section 2 and ss. 9 section 4 shall be treated as
significant features of the Share from the point of view of the provisions
regarding warranty for physical and/or legal defects.
ss.10 The Seller represents that it is the guarantor towards Bank Amerykanski w
Polsce S.A. w Warszawie ("Amerbank") of payment by the Company of the amount of
1.375.002 USD arising under credit contracts herein referred to as "Amerbank
Loan", attached as Exhibit 15.2. The Purchaser shall within 60 days after
transfer of ownership of Share procure that the Seller's obligation mentioned
above is assumed by the Purchaser and the Seller is thus fully released from the
said obligation by Amerbank. If Amerbank does not agree on such assumption and
release, Purchaser hereby agrees and warrants that if Amerbank demands the
payment of debt from Seller, Purchaser shall pay such debt. Purchaser further
agrees not to renew, modify or increase the amount due with Amerbank without
causing the bank to release the Sellers guarantee. Additionally the payment of
credit mentioned above is secured by the guarantee constituting Exhibit 18.
ss. 11
The Seller declares that simultaneously with signing of this Agreement it shall
procure that the composition of the management board of the Company is changed
in such a way that the management board of the Company is composed of the
persons indicated by the Purchaser. The so appointed management board shall
manage the Company's affairs in accordance with the Management Agreement
attached hereto as Exhibit No 16.
ss. 12
The transfer of the ownership right of the Share shall be notified by the
Purchaser to the management Board of the Company in order for the management
board to comply with the notification obligation arising out of Article 188 ss.3
of the Polish Commercial Code.
9
ss. 13
1. Any payments to the Seller pursuant to the provisions of this agreement
shall be transferred to the following account: Northern Trust Bank of
Florida, N. A., 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, ABA Routing No.
000000000, for final credit to International Fast Food Corporation account
1010033376.
2. Any notice which either Party hereto is required to serve upon other Party
should be in writing and shall be sufficiently served if personally
delivered with a written receipt or sent by registered mail and faxed or by
Internationally Recognized Courier Company in the instance of the Seller
to: International Fast Food Corporation Miami Beach, 0000 Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, 00000.
in the instance of the Purchaser to:
Xxxxx XxXxxxxx,
"American Restaurants" Spolka z o.o.
50-381 Wroclaw, xx. X.X.Xxxxxxxxxxx 0
Copy of any notice sent by the Purchaser to the Seller or the Company
should be sent to:
Xx. Xxxxxx Xxxxxxxx
Xxxxxxxx T., Xxxxxxxxx A., Xxxxxxxxxx A.
Kancelaria Prawnicza, Spolka Komandytowa
Xx. Xxxxxxxxxx Xxxxxxxxxxxx 0/0
00-000 Xxxxxx
Fax no. 00 000 00 00
ss. 14
1. This Agreement has been executed, as of the date first above written, in
Polish and English language versions; in case of any discrepancies the
English version shall prevail.
2. For the purpose of this Agreement "materiality" shall mean the aggregate
amount in excess of 50.000 USD arising from any damage that results into an
actual financial loss as a consequence of breach of representation and
warranties. Any liability of the Seller as provided for in paragraph 7.1
resulting from representations and warranties shall only be payable once
the Due Debt, plus liabilities arising from representations and warranties
exceed 3.000.000 USD.
ss. 15
1. The Company agrees, simultaneously with signing of this Agreement, to
deliver to Commercial Court the attached list of shareholders with
reference to the rights of Purchaser under this Agreement. The list of
shareholders constitutes Exhibit 17.
2. The parties hereto mutually agree to maintain all the terms and conditions
of this Agreement in complete confidence including the terms of all related
transactions with BKC, except for disclosures required by law.
ss. 16
1. This Agreement is subject to Polish Law.
2. Any disputes arising out of this Agreement, shall be settled by the
Arbitration Court at the National Chamber of Commerce in Warsaw in
accordance with the rules of that court.
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List of Exhibits:
1) No 1 - power of attorney for Xxxxxx Xxxxxxxx;
2) No 2 - extract from the commercial register of American Restaurants Sp.
z o.o.;
3) No 3 - extract from the commercial register of IFFP sp. z o.o.;
4) No 4 - assignment of IFFC claims to Amrest Holdings N.V.;
5) No 5 - assignment of IFFP claims against PKP;
6) No 6 - description of relationship between PKP and IFFP;
7) No 7 - marked balance sheet of IFFP;
8) No 8 - share register of IFFP;
9) No 9 - letter to Municipality;
10) No 10 - deed of association of CRSB Sp.z o.o.;
11) No 11 - extract from the register of Krolewski Hamburger - Polska Sp. z
o.o.;
12) No 12 - list of guarantees;
13) No 13 - list of long term contracts;
14) No 14 - list of other important contracts;
15) No 15 - Credit Agreement;
16) No 16 - Management Agreement.
17) No 17 - list of shareholders;
18) No 18 - Amrest Holdings N.V. guarantee;
Company Seller: Purchaser:
/s/ XXXXXXXX XXXXXXXX /S/ SIGNATURE ILLEGIBLE
----------- --------------------- -----------------------
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ANNEX I DATED ____________
TO SHARE TRANSFER AGREEMENT OF 27 NOVEMBER 2000
("SHARE TRANSFER AGREEMENT")
ENTERED INTO BY AND BETWEEN:
1. International Fast Food Corporation, an American company with its
registered office in Miami Beach, 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
00000, XXX, represented by Xxxxxxxx Xxxxxxxx and Xxxxx Xxxxxx, hereinafter
referred to as the Seller,
and
2. American Restaurants Sp.z.o.o. with its seat in Wrochaw, at Xxxxx Xxxxx -
Sklodowaka 1, entered into commercial register of the District Court for
Wrochaw under no. RIJB 9262 represented by (name illegible) and Xxxxxx
Xxxxxxxxxxxx hereinafter referred to as the Purchaser.
and
3. International Fast Food Polska Spolka z orgraniczona odpowiezialnoscia with
its registered office in Warsaw xx. Xxxxxxxxxxxx 00 entered into the
commercial register kept by the District Court for the city of Warsaw XVI
Economic Registration Division under RHB No. 32513, represented by Xxxxxx
Xxxxxxxxxx and Xxxx Trybuchorwski hereinafter referred to as the Company.
SS.1
The Purchaser acknowledges that the Agreement of Release attached
hereto as appendix 1 if signed by BKC is satisfactory to the Purchaser and
fulfills the requirements provided for in ss. 3(2)(a) of the Share Transfer
Agreement. The Agreement of Release shall be signed by Purchaser simultaneously
with signing this annex.
SS.2
Further, the Parties have resolved to make the following amendments to
the Share Transfer Agreement:
ss. 3(2)(b) shall read as follows:
"Within 7 business days after statement of non-objection to the merger is
issued by the President of the Office for Competition and Consumer
Protection and delivered to any of the Parties, the Purchaser shall
initiate swift wire transfer to the Seller of 700,000 (seven hundred
thousand US dollars) USD. If Purchaser fails to pay this amount on time,
Purchaser shall pay to Seller 5,000 USD (five thousand US dollars) as
contractual interest for each day of delay. The full $700,000 under this
provision shall not be subject to any offsets of any nature whatsoever.
Same instrument shall apply to payment described in point e) and d) below."
ss. 3(2)(c) shall read as follows:
"Starting from receipt of Agreement of Release (today) Purchaser shall
conduct due diligence of the Company not to exceed 360 days. At the end of
this 360 (three hundred and sixty) days due diligence period the Purchaser
shall pay to the Seller 200,000 USD less any discovered unrecorded
liabilities incurred prior to November 1, 2000 and to the extent that Due
Debts mentioned in par 7 exceed given their amount and are paid by the
Purchaser. One year, as referenced in this Share Transfer Agreement, shall
equal 360 days."
A new ss. 3(2)(d) shall be added, which shall read as follows:
At the end of ninety (90) days the Purchaser shall pay to the Seller, by
Swift wire transfer, $100,000 (one hundred thousand dollars) USD, less the
costs to the Purchaser of the closing and termination of the lease
agreements for Raciborz and/or Katowice. The Seller's liability regarding
the lease of Raciborz and Katowice shall be limited by this provision and
in event shall exceed $100,000 USD. Any monies retained by Purchaser under
this provision and later not actually paid to the creditor, shall be paid
to the Seller after one year from the date of the signing of the Share
Transfer Agreement. Purchaser agrees to use their best efforts to mitigate
the cost to the Seller. If Purchaser decides to operate at any of these
locations, there shall be no charge by Purchaser against the reserve fund
for that location. If Purchaser sells either Katowice or Raciborz, the
funds received for sale shall be for the benefit of the Seller and shall be
remitted to the Seller by the Purchaser within 7 business days of receipt."
A new ss. 4(6) shall be added after ss. 4(5), which shall read as follows:
"The earlier of (illegible) months from the signing of the Share Transfer
Agreement or the procurement of a statement of non objection to the merger
from the President of the Office for Competition and Consumer Protection
the Purchaser shall have the right to terminate the Share Transfer
Agreement provided that no section has been taken by the Company and/or the
Purchaser out of the ordinary course of business. Not ordinary course of
business shall include but not be limited to the modification, transfer,
sale or cancelling of any lease agreement of the closing of any location or
the entering into any binding contracts. If Purchaser elects to terminate
the Share Transfer Agreement the Purchaser shall forfeit all monies
advanced to the Company and all monies given to Seller. The Company and the
Seller shall be under no obligation to return any monies or consideration
given up to the date of notification or termination. This provision shall
only be valid and enforceable once the conditions of payment have been met
by Purchaser under 3(2)(a)"
-2-
SS.3
Purchaser does hereby acknowledge that the guaranty issued by AmRest
Holdings N.V. constituting enclosure 13 to the Share Transfer Agreement is still
valid and sufficient under the modifications to the Share Transfer Agreement
introduced by this annex. In witness whereof the guaranty has been duly
confirmed by AmRest Holdings N.V. and attached hereto as appendix 2.
SS.4
The provisions of this annex amending the Share Transfer Agreement
shall come into force and be binding upon the Parties under the condition that
Purchaser initiates swift wire transfer of 1,000,000 USD (one million US
dollars) as provided in ss. 3(2)(a) of the Share Transfer Agreement
SS.5
This annex has been executed by fax. The Parties acknowledge that such
mode of execution of this annex is valid and binding upon them. The Parties
shall as soon as possible, but not later than within 10 business days starting
from the date of this annex, procure that the originally signed copies of this
annex are duly exchanged among them.
SS.6
The Polish version of this annex shall be prepared within the next 3
days. However, in case of any discrepancies between the two language versions,
the English version shall prevail.
List of appendices:
1) No 1 - Agreement of Release from Burger King Corporation
2) No 2 - Confirmed Guaranty by AmRest Holdings N.V.
Company: Seller: Purchaser:
/S/ XXXXXXXX XXXXXXXX, PRESIDENT /S/ SIGNATURE ILLEGIBLE
------------ -------------------------------- -----------------------
/s/ Xxxxx Xxxxxx, Vice President /s/ Signature Illegible
-3-
