Exhibit 10.1
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT is entered into on the 27th day of
September, 1999 between:
ORESA VENTURES N.V., a company organized and existing under the laws of
the Netherlands Antilles, with registered offices at Scharlooweg 81,
Curacao, the Netherlands Antilles and CELOX S.A., a company organized
existing under the laws of Luxembourg, with registered offices at Avenue
Pasteur 3, L-2311 Luxembourg ("Buyers");
and
BALTIC INTERNATIONAL USA, INC., a corporation organized and existing
under the laws of the state of Texas, USA, with principal offices at 5151
San Felipe, Suite 1661, Houston, Texas 77056, USA ("Seller").
WHEREAS, AIRO Catering Services, Sweden A.B. is a private limited
liability company organized under the laws of Sweden, having a registration
number 556535-6028, with an address at Box 216, 19047 Stockholm Arlanda, Sweden
(the "Company");
WHEREAS, the Company has an authorized share capital of 100,000 SEK which
is made up of one class and one series of shares divided into 1,000 SEK shares
of 100 SEK par value each (the "Shares"), of which 1,000 Shares are currently
issued and outstanding;
WHEREAS, Seller sold 230 Shares to the Buyers through a share purchase
agreement dated June 30, 1999;
WHEREAS, Seller is the registered and beneficial owner of 229 Shares,
constituting approximately 22.9% of the issued and outstanding Shares, Buyers
are the beneficial owners of 230 Shares, constituting 23.0% of the issued and
outstanding Shares, TOP Flight Catering AB, a company organized and existing
under the laws of Sweden ("TOPflight"), is the registered and beneficial owner
of 491 Shares, constituting approximately 49.1% of the issued and outstanding
Shares and LSG Lufthansa Service Europa/Afrika GmbH, a company organized and
existing under the laws of the Federal Republic of Germany ("LSG") is the
registered and beneficial owner of 50 Shares, consisting approximately 5.0% of
the issued and outstanding Shares;
WHEREAS, at the time of the execution of this Purchase Agreement, the
reorganization of the AIRO-group was still ongoing which will result in the
Company being the beneficial and legal owner of AIRO Catering Services, Ltd., a
company organized and duly existing under the laws of the British Virgin
Islands (the "Subsidiary") and all of the assets of the Subsidiary (the
"Reorganization");
WHEREAS, Seller is the registered and beneficial owner of 107,377 shares
in the Subsidiary, constituting approximately 22.7% of the issued and
outstanding shares of the Subsidiary, Buyers are the beneficial owners of
110,000 shares in the Subsidiary, constituting approximately 23.2% of the
issued and outstanding shares of the Subsidiary, TOPflight is the registered
and beneficial owner of 232,809 shares in the Subsidiary, constituting
approximately 49.1% of the issued and outstanding shares of the Subsidiary and
LSG is the registered and beneficial owner of 23,694 shares in the Subsidiary,
constituting approximately 5.0% of the issued and outstanding shares of the
Subsidiary;
WHEREAS, in connection with the ongoing Reorganization, all the shares in
the subsidiary shall be contributed to the Company in exchange for newly issued
Shares in the Company;
WHEREAS, Seller desires to sell, and Buyers desire to purchase, 229 of the
Shares in the Company and 107,377 shares in the Subsidiary (collectively, the
"Sale Shares") at the price and upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. DEFINITIONS
For all purposes of this Purchase Agreement, certain capitalized terms
specified in Exhibit A, except as otherwise expressly provided.
2. SALE AND PURCHASE OF SHARES
2.1. Sale and Purchase of Shares
On the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions hereof, Seller agrees
to sell to Buyers, and Buyers agree to purchase from Seller, the Sale Shares
for:
(i) cash of US$1,145,000 (one million one hundred forty-five
thousand US dollars); and
(ii) the Buyers will forgive any and all unpaid interest and
principal (aggregating approximately US$200,000) on the US$2,000,000 loan under
the Promissory Note dated September 29, 1997 to the Seller.
2.2. Payment of Purchase Price
At the Closing, Buyers shall deliver the Purchase Price consisting
of cash by wire transfer to a bank account designated by Seller.
3. REPRESENTATIONS AND WARRANTIES
Seller and Buyers represent warrant as set forth in the Representations
and Warranties attached hereto as Exhibit B.
4. CLOSING
4.1. Closing of Sale and Purchase
The Closing shall take place upon the execution and delivery of
this Agreement on the date hereof.
4.2. Deliveries by Seller
At the Closing, Seller shall deliver to Buyers:
(i) certificates representing the Sale Shares, if any, with
appropriate share transfer forms and such endorsements or other documentation
as may be required to transfer title in the Sale Shares to Buyers; and
(ii) a copy of all necessary resolutions adopted by the Board of
Directors of Seller authorizing the transactions contemplated by this Purchase
Agreement.
4.3. Deliveries by Buyers
At the Closing and subject to Section 4.2, Buyers shall deliver the
following to Seller:
(i) the Purchase Price in accordance with Section 2.2; and
(ii) a copy of all necessary resolutions adopted by the
respective Board of Directors of Buyers, authorizing the transactions
contemplated by this Purchase Agreement.
5. SURVIVAL OF REPRESENTATIONS; RELEASES; AND REMEDIES
5.1. Survival of Representations
All representations, warranties, covenants, indemnities and other
Agreements made by any party to this Purchase Agreement herein or pursuant
hereto shall survive the Closing and any investigation, audit or inspection at
any time made by or on behalf of any party hereto.
5.2. Releases
5.2.1 Releases by Seller
Seller will release the Buyers from any and all claims in
connection with this sale of the Sale Shares of the Company.
5.2.2 Releases by Buyers
Buyers will release Seller from any and all claims in
connection with this purchase of the Sale Shares of the Company.
5.3. Remedies
The remedies provided herein shall be cumulative and shall not
preclude the assertion by Seller or Buyers of any other rights or the seeking
of any other remedies, including specific performance, against the other, or
their respective successors or assigns.
6. MISCELLANEOUS
6.1. Additional Actions and Documents
Each of the parties hereto hereby agrees to take or cause to be
taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further Documents, and will obtain such
consents, as may be necessary or as may be reasonably requested in order to
fully effectuate the purposes, terms and conditions of this Purchase Agreement.
6.2. Expenses
Except as may otherwise be provided hereunder, each party hereto
shall pay its own expenses incident to this Purchase Agreement and the
transactions contemplated hereunder.
6.3. Assignment
No party hereto shall assign any of its rights and obligations
under this Purchase Agreement, in whole or in party, whether by operation of
law of otherwise, without the prior written consent of the other party hereto,
and any such assignment contrary to the terms hereof shall be null and void and
of no force and effect. In no event shall the assignment by a party hereto of
its respective rights or obligations under this Purchase Agreement release such
party from its liabilities and obligations hereunder.
6.4. Entire Agreement; Amendment
This Purchase Agreement, including the Exhibits and other Documents
referred to herein or furnished pursuant hereto, constitutes the entire
Agreement among the parties hereto with respect to the transactions
contemplated herein, and its supersedes all prior oral or written Agreements,
commitments or understandings with respect to the matters provided for herein.
No amendment, modification or discharge of this Purchase Agreement shall be
valid or binding unless set forth in writing and duly executed and delivered by
the party against whom enforcement of the amendment, modification or discharge
is sought.
6.5. Waiver
No delay or failure on the part of any party hereto in exercising
any right, power or privilege under this Purchase Agreement or under any other
Documents furnished in connection with or pursuant to this Purchase Agreement
shall impair any such right, power or privilege or be construed as a waiver of
any default or any acquiescence therein. No single or partial exercise of any
such right, power or privilege shall preclude the further exercise of such
right, power or privilege, or the exercise of any other right, power or
privilege. No waiver shall be valid against any party hereto unless made in
writing and signed by the party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.
6.6. Consent to Jurisdiction
6.6.1. Jurisdiction
This Purchase Agreement and the duties and obligations of
Buyers and Seller hereunder shall be enforceable against Buyers and Seller in
the courts of Houston, Texas. For such purpose, Buyers and Seller each hereby
irrevocably submits to the non-exclusive jurisdiction of such courts, and
agrees that all claims in respect of this Purchase Agreement may be heard and
determined in any of such courts.
6.6.2. Enforceability
Buyers and Seller each hereby irrevocably agrees that a
final judgment of any of the courts specified above in any action or proceeding
relating to this Purchase Agreement shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
6.7. Governing Law
This Purchase Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of Houston, Texas (but excluding the
choice-of-law rules thereof).
6.8. Severability
If any part of any provision of this Purchase Agreement or any
other Agreement or Document given pursuant to or in connection with this
Purchase Agreement shall be invalid or unenforceable in any respect, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provision or the
remaining provisions of this Purchase Agreement.
6.9. Notices
All notices demands, requests, or other communications which may be
or are required to be given, served, or sent by any party to any other party
pursuant to this Purchase Agreement shall be in writing and shall be hand
delivered, sent by overnight courier or mailed by first-class, registered or
certified post, return receipt requested, postage prepaid, or transmitted by
telegram, fax or telex, addressed as follows:
(i) If to Buyers:
Oresa Ventures N.V. Celox S.A.
Waterloo Office Park Waterloo Office Park
Building O Building O
Dreve de Richelle 161 Dreve de Richelle 161
1410 Waterloo 1410 Waterloo
Belgium Belgium
Fax: +32 2 357 55 05 Fax: +32 2 357 55 05
(ii) If to Seller:
Baltic International USA, Inc.
5151 San Felipe, Suite 1661
Houston, Texas 77056
USA
Fax: +1 713-961-9298
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served or
sent. Each notice, demand, request, or communication which shall be hand
delivered, sent, mailed, faxed or telexed in the manner described above, or
which shall be delivered to a telegraphy company, shall be deemed sufficiently
given, served, sent, received or delivered for all purposes at such time as it
is delivered to the addressee (with the return receipt, the delivery receipt,
or (with respect to a fax or telex) the answer back being deemed conclusive,
but not exclusive, evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation.
6.10. Headings
Article and Section headings contained in this Purchase Agreement
are inserted for convenience of reference only, shall not be deemed to be a
part of this Purchase Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
6.11. Execution in Counterparts
To facilitate execution, this Purchase Agreement may be executed
in as many counterparts as may be required. It shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
Agreement. It shall not be necessary in making proof of this Purchase
Agreement to produce or account for more than a number of counterparts
containing the respective signature of, or on behalf of, all of the parties
hereto.
6.12. Limitation on Benefits
The covenants, undertakings and agreements set forth in this
Purchase Agreement shall be solely for the benefit of, and shall be enforceable
only by, the parties hereto and their respective successors, administrators,
legal representatives and permitted assigns.
6.13. Binding Effect
Subject to any provisions hereof restricting assignment, this
Purchase Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, administrators, legal
representatives and permitted assigns.
___________________________________________
IN WITNESS WHREOF, the parties hereto have caused this Purchase Agreement
to be duly executed on their behalf, on the day and year first above written.
ORESA VENTURES N.V. CELOX S.A.
By: /s/ Fredrik Ragmark By: /s/ Joans af Jochnick
------------------------------ -------------------------
Fredrik Ragmark Jonas af Jochnick
Managing Director Chairman
BALTIC INTERNATIONAL USA, INC.
By: /s/ David A. Grossman
----------------------------
David A. Grossman
President and Chief Financial Officer
EXHIBIT A
DEFINITIONS
"Agreement" means any concurrence of understanding and intention
between two or more persons or entities with respect
to their relative rights and/or obligations or with
respect to a thing done or to be done (whether or
not conditional, executory, express, implied, in
writing or meeting the requirements of contract),
including without limitation, contracts, leases,
promissory notes, covenants, easements, rights of
way, covenants, commitments, arrangements and
understandings.
"Article" means an Article of this Purchase Agreement.
"Buyers" has the meaning set out in the preamble to this
Purchase Agreement.
"Claims" means all demands, claims, actions or causes of
action, assessments, losses, damages (including,
without limitation, diminution in value),
liabilities, costs and expenses, including, without
limitation, interest, penalties and attorneys'
fees and disbursements.
"Closing" means the closing of the sale and purchase of the
Sale Shares pursuant to this Purchase Agreement.
"Company" has the meaning set out in the preamble to this
Purchase Agreement.
"Documents" means any paper or other material (including, without
limitation, computer storage media) on which is
recorded (by letters, numbers or other marks)
information that may be evidentially used,
including, without limitation, legal opinions,
mortgages, indentures, notes, instruments,
leases, Agreements, insurance policies, reports,
studies, financial statements (including, without
limitation, the notes thereto), other written
financial information, schedules, certificates,
charts, maps, plans, photographs, letters,
memoranda and all similar materials.
"Encumbrance" means any mortgage, lien, pledge, encumbrance,
security interest, deed of trust, option,
encroachment, reservation, order, decree, judgment,
condition, restriction, charge, Agreement, claim or
equity of any kind.
"Exhibit" means an exhibit attached to the Purchase Agreement.
"Laws" means all foreign, national and local statutes, laws,
ordinances, regulations, rules, resolutions, orders,
determinations, writs, injunctions, awards
(including, without limitation, awards of any
arbitrator), judgments and decrees applicable to
the specified persons or entities and to the
businesses and Assets thereof (including, without
limitation, Laws relating to securities
registration and regulation; the sale, leasing,
ownership or management of real property;
employment practices, terms and conditions, and
wages and hours; building standards, land use and
zoning; safety, health and fire prevention; and
environmental protection).
"Ordinary Course
of Business" means ordinary course of business consistent with
past practices and prudent business operations.
"Purchase Agreement" means this Share Purchase Agreement, including,
without limitation, all Exhibits hereto.
"Purchase Price" means the purchase price for the Sale Shares to be
sold and purchased pursuant to the Purchase
Agreement.
"Reorganization" has the meaning set out in the preamble to this
Purchase Agreement.
"Representations
and Warranties" means the representations and warranties attached
hereto as Exhibit C. For the avoidance of doubt, the
uncapitalized term "representations and
warranties" includes, but is not limited to, the
Representations and Warranties attached hereto as
Exhibit C.
"Sale Shares" means the Shares to be purchased by Buyers hereunder
pursuant to Article 2.
"Section" means a Section (or a subsection) of this Purchase
Agreement.
"Seller" has the meaning set out in the preamble to this
Purchase Agreement.
"Shares" has the meaning set out in the preamble to this
Purchase Agreement.
"Subsidiary" has the meaning set out in the preamble to this
Purchase Agreement.
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
1. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyers as set forth below.
1.1. Title to Sale Shares
Seller is the lawful owner of the Sale Shares. Since the date of
the issuance of the Sale Shares to Seller, there has been no event, or action
taken (or failure to take action) by or against Seller, which has resulted or
might result in the creation of any Encumbrance on the Sale Shares. Seller has
good, valid and marketable title to the Sale Shares, free and clear of all
Encumbrances, with full right and lawful authority to sell and transfer the
shares to Buyers pursuant to this Purchase Agreement.
1.2. Transfer of Title
Upon Buyers' payment for the Sale Shares pursuant to the terms of
this Purchase Agreement, Buyers will acquire good, valid and marketable title
thereto, free and clear of all Encumbrances.
1.3. Authorization
The execution, delivery and performance by Seller of this Purchase
Agreement and all other Documents contemplated hereby, the fulfillment of and
the compliance with the respective terms and provisions hereof and thereof, and
the consummation by Seller of the transactions contemplated hereby and thereby
have been duly authorized by its board of directors (which authorization has
not been modified or rescinded and is in full force and effect), and will not:
(a) conflict with, or violate any provision of, the memorandum or articles of
association of Seller or (b) conflict with, or result in any breach of, or
constitute a default under, any Agreement to which Seller is a party or by
which Seller is bound. No other corporate action is necessary for Seller to
enter into this Purchase Agreement and all other Documents contemplated hereby
and to consummate the transactions contemplated hereby and thereby.
1.4. Binding Obligation
This Purchase Agreement constitutes a valid and binding obligation
of Seller, enforceable in accordance with its terms; and each Document to be
executed by Seller pursuant hereto, when executed and delivered in accordance
with the provisions hereof, shall be a valid and binding obligation of Seller,
enforceable in accordance with its terms.
2. REPRESENTATIONS AND WARRANTIES OF BUYERS
Buyers hereby represent and warrant to Seller as follows:
2.1. Authorization
The execution, delivery and performance by Buyers of this Purchase
Agreement and all other Documents contemplated hereby, the fulfillment of and
the compliance with the respective terms and provisions hereof and thereof, and
the consummation by Buyers of the transactions contemplated hereby and thereby
have been duly authorized by their respective board of directors (which
authorization has not been modified or rescinded and is in full force and
effect), and will not: (a) conflict with, or violate any provision of, the
memorandum or articles of association of Buyers or (b) conflict with, or result
in any breach of, or constitute a default under, any Agreement to which Buyers
are a party or by which Buyers are bound. No other corporate action is
necessary for Buyers to enter into this Purchase Agreement and all other
Documents contemplated hereby and to consummate the transactions contemplated
hereby and thereby.
2.2 Binding Obligation
This Purchase Agreement constitutes a valid and binding obligation
of Buyers, enforceable in accordance with its terms. Each Document to be
executed by Buyers pursuant hereto, when executed and delivered in accordance
with the provisions hereof, shall be a valid and binding obligation of Buyers,
enforceable in accordance with its terms.