AMENDMENT TO STOCK PURCHASE AGREEMENT
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THIS AMENDMENT TO STOCK PURCHASE AGREEMENT is made as of April 7, 2000
among CHESHIRE DISTRIBUTORS, INC., a Delaware corporation ("Buyer"), XXXXXXX
X.X. XXXXXXX and ALBERTEINA XXXXXXX, (sometimes referred to herein individually
as "Seller" and collectively as "Sellers"), and XXXXXXX CIGARETTE DEPOT (PTY)
LIMITED, a South African corporation (the "Company").
P R E A M B L E:
WHEREAS, Buyer, Sellers and the Company entered into a Stock Purchase
Agreement dated as of September 23, 1999 (the Agreement") pursuant to which
Buyers agreed to purchase from Sellers and Sellers agreed to sell to Buyer all
of the outstanding Shares of the Company (the "Shares"), as well as certain
other assets, consisting of real property owned by or under the control of
Sellers and used in connection with the business of the Company (the "Related
Assets"); and
WHEREAS, the parties wish to amend the Agreement in certain respects
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties herein contained, the parties agree as
follows:
A. CLOSING PROCEDURES. Sections 1.2 and 1.3 of the Agreement are
hereby amended and restated in their entirety to read as follows:
1.2 Payment of Purchase Price and delivery of Shares. At the
Closing, subject to the terms and conditions hereof:
(a) the Buyer shall pay to the Sellers the first installment of
the Purchase Price in the sum of $1,000,000 by certified check or by
wire transfer of immediately available funds to bank accounts in the
Republic of South Africa, as designated by Sellers, respectively. The
Buyer shall pay the remainder of the Purchase Price in the same
manner, by paying a second installment of $2,000,000 (the "Second
Installment") on or before the twenty-first day after of the Closing
Date, and a final installment of $7,000,000 on or before the date
which is six months after the Closing Date (the "Third Installment").
(b) the Sellers will deliver to Buyer certificate(s) representing
ten (10%) percent of the Shares and will deliver to CorpCapital
Limited, as Escrow Agent, the remainder of the Shares, together with
declarations for the transfer thereof in blank as to transferee, duly
signed by the Sellers/registered holders and without such forms being
dated and otherwise complying with the provisions of the Company's
articles of association and the South African Stamp Duties Act, 1968.
As additional portions of the Purchase Price are
paid to the Sellers, The Escrow Agent shall deliver to the Buyer
(together with the transfer documentation in respect thereof), Shares
out of Escrow so that the Buyer shall have received delivery of a
percentage of the Shares which is identical to the percentage of the
Purchase Price which has been paid to the Sellers. For example,
simultaneously with the Second Installment being paid in full, the
Buyer shall have received 30% in the aggregate of the Shares, and
simultaneously with the Third Installment being paid in full, the
Buyer shall have received 100% in the aggregate of the Shares.
Provided the Sellers are then not in default under this Agreement, if
any portion of the Purchase Price remains unpaid on the date which is
six months after the Closing Date, the Sellers shall have the right by
notice to the Buyer and the Escrow Agent, to terminate the unexecuted
portion of this Agreement and to cause the remaining Shares held by
the Escrow Agent to be returned to the Buyers. Title in and to the
Shares hald in escrow shall not transfer to the Buyer until the
purchase price in respect of the relevant Shares has been discharged
as herein contemplated.
1.3 TRANSFER OF RELATED ASSETS. Sellers shall cause title to the
Related Assets to be transferred to Buyer not later than the date
which is six months after the Closing Date. It shall be a condition to
the payment of the Third Installment that such transfer shall have
been consummated.
B. PROVISIONS RE SHARES. The parties agree to the following provisions
regarding the Shares which shall expire on the payment of the Third Installment:
1. The issued share capital of the Company shall comprise a single class of
shares.
2. To the extent that any dividends are to be paid by the Company,
dividends may only be paid to the Buyer rateably in proportion to the Buyer's
percentage of paid for Shares in the Company. Dividends payable on account of
Escrow Shares shall be paid to the Escrow Agent and shall be delivered by the
Escrow Agent to the party ultimately receiving such Shares.
3. To the extent that the Company is indebted to the Buyer on a loan
account, loans shall only be repaid to the Buyer rateably in proportion to the
Buyer's percentage of paid for Shares in the Company.
4. United States Dollar denominated loans which are owing by the Company to
non-residents will be repayable in accordance with their current repayment terms
(as set out in the audited financial statements of the Company).
C. PROVISIONS RE ESCROW AGENT. The Escrow Agent shall be obligated only for
the performance of such duties as are specifically set forth herein and may rely
and shall be protected in relying or refraining from acting on any instrument or
writing reasonably believed by the Escrow Agent to be genuine and to have been
signed or presented by the proper party or parties. The Escrow Agent shall not
be personally liable for any act the Escrow Agent may do or omit to do hereunder
as the Escrow Agent while acting in good faith, and any act done or omitted by
the Escrow Agent pursuant to the advice of the Escrow Agent's attorneys-at-law
shall be conclusive evidence of such
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good faith. If any dispute arise with respect to the delivery and/or ownership
or right of possession of the Shares held by the Escrow Agent hereunder, the
Escrow Agent is authorized and directed in to retain in the Escrow Agent's
possession without liability to anyone all or any part of said Shares until such
disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but the Escrow Agent shall be under no duty whatsoever to
institute or defend any such proceedings.
D. AMENDMENT. This Agreement may be further amended, modified or
supplemented but only in writing signed by each of the parties hereto.
D. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed an original, but all of which together
shall constitute one and the same instrument.
E. SEVERABILITY. If any provision of the Agreement, as amended hereby,
shall be held invalid, illegal or unenforceable, the validity, legality or
enforceability of the other provisions hereof shall not be affected thereby, and
there shall be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
F. ENTIRE UNDERSTANDING. The Agreement, as hereby amended, and the Related
Agreements set forth the entire agreement and understanding of the parties
hereto and supercede any and all prior agreements, arrangements and
understandings among the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Stock
Purchase Agreement to be execute and delivered as of the date first above
written.
CHESHIRE DISTRIBUTORS, INC. XXXXXXX CIGARETTE DEPOT (PTY) LIMITED
By:/s/ Xxxxxx Xxxx-Xxxxxxxx By: /s/ Xxxxxxx X.X. Xxxxxxx
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Xxxxxx Xxxx-Xxxxxxxx Xxxxxxx X.X. Xxxxxxx
Title: Chairman Title: Chairman
/s/ Xxxxxxx X.X. Xxxxxxx
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Xxxxxxx X.X. Xxxxxxx
/s/ Alberteina Xxxxxxx
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Alberteina Xxxxxxx
ACCEPTED BY ESCROW AGENT:
CORP CAPITAL
By: /s/ Corp Capital
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Date: April 7, 2000
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