EXHIBIT 2(b)
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT dated as of February 25, 1997 by and among
TREASURY INTERNATIONAL, INC., SILVER 925, INC., MOCHE BENDAYAN, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇▇.
RECITALS:
The parties hereto entered into an Agreement dated as of June 18, 1996 with
respect to the purchase by Treasury of all of the issued and outstanding shares
of Silver.
The parties desire to amend the Agreement upon the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and other mutual
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree that the Agreement is amended as follows:
1. Section 1.1 of the Agreement is hereby modified by deleting
"$4,200,000.00" and adding "$2,000,000.00, payable in five annual installments
of $400,000.00".
2. Section 1.2 of the Agreement is hereby deleted in its entirety and
replaced by the following:
"1.2 Payment of Purchase Price. (a) Each annual installment of the
Purchase Price shall be paid 90% in shares of common stock of Treasury (the
"Share Portion") and 10% in cash (the "Cash Portion"). Each of the second
through fifth $40,000 installments of the Cash Portion shall be paid to the
Stockholders not later than sixty (60) days following the anniversary of
the Closing Date
in 1998, 1999, 2000 and 2001, in the following amounts:
Moche Bendayan - $ 18,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ - $ 4,000
Salmon Bendayan - $ 18,000
Notwithstanding the foregoing or anything to the contrary contained herein, (i)
the first installment of the Cash Portion shall be deemed paid to all
Stockholders upon the payment by Silver to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of United States
Customs duty drawbacks received by Silver in the approximate amount of $80,000
(the "Customs Reimbursement"), and (ii) the second installment of the Cash
Portion shall be deemed paid to all Stockholders to the extent the Customs
Reimbursement paid to Salomon exceeds $80,000. Each installment of the Share
Portion shall be payable in twelve (12) equal monthly issuances, the first such
issuance of the first annual installment being due on the Closing Date and each
remaining monthly issuance of each annual installment being due on the first
business day of each month beginning with March, 1997. The number of shares of
the first annual installment of the Share Portion shall be 900,000. The number
of shares of each of the four subsequent annual installments of the Share
Portion shall be determined by dividing $360,000 by the average of the closing
bid price of shares of Treasury common stock over the five (5) trading days
preceding each March 1 of 1998, 1999, 2000 and 2001, respectively, as reported
by Bloomberg, L.P. (or, in the absence of a quote from Bloomberg, L.P., as
reported by a service of equivalent reputation).
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(b) The first monthly installment of the Share Portion shall be paid
as follows:
within ten (10) days following the Closing Date (as hereinafter
defined) Treasury shall deliver to each Stockholder, against receipt
from each Stockholder on the Closing Date of stock certificates
representing the number of shares of Silver set forth below opposite
his name, endorsed to Treasury or accompanied by a signed stock power
transferring such shares to Treasury, together with all applicable
stock transfer tax stamps relative to said certificates, if any, stock
certificates evidencing each Stockholder's ownership of the number of
common shares of stock of Treasury set forth below opposite his name:
Capital Stock Amount of
of Silver to Common
be delivered Shares
------------ ------
Moche Bendayan 45 33,750
▇▇▇▇▇▇ ▇▇▇▇▇▇ 20.77 7,500
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 5 33,750
(c) Prior to the first anniversary of the Closing Date, a Stockholder
may assign to a custodial account his right to receive further installments
of the Share Portion by delivery to Treasury of a fully-executed copy of an
assignment in form and substance reasonably satisfactory to Treasury."
3. The last sentence of Section 2.10 of the Agreement is hereby modified by
adding the following at the end thereof:
", except for the Lease Agreement between 12th Floor
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Properties, Inc. and Silver, dated November 1, 1996, for the occupancy of
the 12th floor at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇".
4. Section 5.8 of the Agreement is hereby modified by adding the following
after "corporate guarantee" on the third line thereof: "and, if requested by
Republic, the personal guaranty of ▇▇▇▇▇ ▇▇▇,".
5. Section 7.1(e) of the Agreement is hereby deleted and the following is
added in lieu thereof:
"(e) Silver shall have (i) delivered to Treasury (1) its unaudited
consolidated financial statement as of July 31, 1996, including a
consolidated balance sheet as of July 31, 1996 showing current assets of
not less than $3,900,000, current liabilities of not more than $3,750,000,
and stockholders' equity of not less than $1,030,000; and (2) its unaudited
consolidated financial statement as of October 31, 1996, including a
consolidated balance sheet as of October 31, 1996 showing current assets of
not less than $3,900,000, current liabilities of not more than $3,905,000,
and stockholders' equity of not less than $1,040,000, and (ii) directed its
accountants to prepare and deliver to Silver within thirty (30) days
following the Closing Date an audited consolidated financial statement as
of October 31, 1996, including a consolidated balance sheet for the one
year period ending October 31, 1996 and profit and loss statements for the
two year period ending October
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31, 1996. Treasury hereby waives the right to offset the Purchase Price or
make any claim against the Stockholders based upon any discrepancy between
the aforementioned or other unaudited financial statements and the
afore-mentioned audited financial statement or proposed audited financial
statements for prior years."
6. Section 7.1(k) of the Agreement is hereby modified by deleting
"$150,000" in subdivision (i) and adding "$125,000" in lieu thereof.
7. Section 7.1(l) of the Agreement is hereby modified by adding at the end
thereof: "except that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ employment agreement shall prohibit
competition with Treasury and Silver during the term of his employment agreement
and continuing for a period ending on the third anniversary of the expiration or
earlier termination of his employment agreement".
8. Section 7.1 of the Agreement is hereby modified by deleting subsection
(o).
9. Section 7.2(d) of the Agreement is hereby deleted.
10. Section 7.2 of the Agreement is hereby modified by adding the following
as subsection (f):
"(f) Treasury, as the sole stockholder of Silver following the
Acquisition, shall have delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Salomon") its
agreement to elect a two-member Board of Directors of Silver, one of which
directors shall be Salomon, which agreement shall terminate on the date
Republic National Bank of Miami ("Republic") releases Salomon and Moche
Bendayan as
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guarantors of the debt owed by Silver to Republic pursuant to the Line of
Credit Agreement".
11. Section 8.1(d) of the Agreement is hereby modified by adding the
following after "corporate guaranty" on the second line thereof: "and, if
requested by Republic, the personal guaranty of ▇▇▇▇▇ ▇▇▇,".
12. Section 8.1 of the Agreement is hereby modified by (a) deleting "on
August 29, 1996" and adding "no later than February 27, 1997" in lieu thereof.
13. Section 8.2(j) of the Agreement is hereby deleted and the following is
added in lieu thereof:
"(j) the non-compete agreement described in Section 11.10".
14. Section 8.3(b) of the Agreement is hereby deleted and the following is
added in lieu thereof:
"(b) Treasury shall deliver to the Stockholders the following:
(i) the non-compete agreement described in Section 11.10";
(ii) a security interest in the assets of Silver, as evidenced by
a UCC-1 filing statement and a security agreement provided by Silver
in the form annexed hereto as Exhibit 8.3(b)(ii), and
(iii) a security interest in the shares of Silver owned by
Treasury, as evidenced by a UCC-1 filing statement and a security
agreement provided by Treasury in the form annexed hereto as Exhibit
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8.3(b)(iii)".
15. The following is added as subsection (c) of Section 8.3:
"(c) Treasury shall deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ the following:
(i) the employment agreement described in Sections 7.1(k) and
7.1(l); and
(ii) a certificate of the secretary of Silver attesting to the
election of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as a director of Silver as described in
Section 7.2(f)."
16. The following is added as Section 8.4:
"8.4 Post-Closing Obligations. (a) Following the Closing, the parties
shall use their reasonable good faith efforts to obtain a release by
Republic of Salomon and Moche Bendayan as guarantors of Silver's debt to
Republic pursuant to the Line of Credit Agreement.
(b) Treasury shall use reasonable good faith efforts to file with the
Securities and Exchange Commission (the "SEC") by May 31, 1997 an
appropriate form of registration statement to register under the Securities
Act of 1933, as amended, the shares which constitute the Share Portion and
to use reasonable good faith efforts to cause such statement to become
effective within ninety (90) days from the date of filing and to keep such
statement effective until all such shares constituting the Share Portion
shall have been sold by the Stockholders or until such earlier time as such
shares may be sold without such registration pursuant to Rule 144(k) or
other applicable exemption under such Act."
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17. Section 10.1(a)(iii) of the Agreement is hereby modified by deleting
"August 29, 1996" and adding "February 27, 1997" in lieu thereof.
18. Section 11.2 of the Agreement is hereby modified by deleting the
address for notices to Treasury and adding the following in lieu thereof:
"7040 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇".
19. The following is added as Section 11.10 of the Agreement:
"11.10 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Gmbh. The stock of ▇▇▇▇▇▇▇ & Bendayan Gmbh.,
a German corporation ("▇▇▇▇▇▇▇"), and the business of ▇▇▇▇▇▇▇ shall be
excluded from the transaction contemplated under this Agreement. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ shall be entitled to retain ownership of the stock of ▇▇▇▇▇▇▇ and
his ownership shall not be affected in any manner under this Agreement
except as set forth in this paragraph. At the Closing, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
shall cause ▇▇▇▇▇▇▇ to execute a covenant not to compete with the business
of Silver in the United States and Silver shall execute a covenant not to
compete with the business of ▇▇▇▇▇▇▇ in Europe. Furthermore, the employment
agreement of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall provide that his ownership of stock of
▇▇▇▇▇▇▇ and his employment with ▇▇▇▇▇▇▇ shall not be deemed a violation of
the non-compete provisions therein".
20. Schedule 2.17 of the Agreement is modified by adding the following as
subdivisions 5 and 6:
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"5. Silver has not filed its federal or state income tax returns for
the fiscal years ended July 31, 1995 and July 31, 1996, and no federal or
state income tax for said periods has been paid.
6. the Internal Revenue Service is auditing Silver's federal income
tax return for the fiscal year ended July 31, 1994, which audit may result
in additional income tax liability and may expand to include the fiscal
years ended July 31, 1995 and July 31, 1996."
21. To the extent any provision of the Agreement requires the taking of any
act following the Closing, said provision shall survive the Closing.
22. All prior amendments to the Agreement, if any, are hereby revoked ab
initio and shall be considered of no further force or effect.
23. In consideration of the extension of the Closing Date to February 27,
1997, Treasury shall issue to Salomon 25,000 shares of common stock of Treasury
within ten (10) days following the Closing Date.
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IN WITNESS WHEREOF, the parties have caused their hands and seals to be
affixed as of the date first above written.
TREASURY INTERNATIONAL, INC.
By: /S/ ▇▇▇▇▇ ▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Chief Executive Officer
SILVER 925, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
/S/ Moche Bendayan
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MOCHE BENDAYAN
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
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