SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 19, 1997
Treasury International, Inc.
(Exact name of registrant as specified in its charter)
Delaware 0-28514 98-0160284
(State of Incorporation) (Commission File Number) (IRS Employer
Identification No.)
1183 Finch Avenue W
Downsview, Ontario, Canada M3J 2G2
(Address of principal executive offices) (Zip Code)
(416) 663-0668
(Registrant's telephone number)
Item 2. Acquisition or Disposition of Assets.
On September 19, 1997, Treasury International, Inc. (the "Company")
entered into an Agreement (the "Agreement") with James Hal, Silver 925, Inc.
("Silver") and each of Moche Bendayan, Salomon Bendayan and Edward Kozial (the
"Purchasers"), pursuant to which the Company resold to the Purchasers all of the
outstanding shares of Silver's common stock (the "Silver Shares").
In consideration for the repurchase of the Silver Shares and in
settlement of all obligations of the Company and James Hal under the terms of
that certain Agreement dated as of June 18, 1996, as amended as of February 25,
1997, the Company issued to the Purchasers an aggregate of 752,500 shares of the
Company's common stock.
Item 7. Financial Statements and Exhibits.
Exhibits
2. Agreement dated as of September 19, 1997 by and among Treasury
International, Inc., James Hal, Silver 925, Inc., Moche Bendayan, Salomon
Bendayan and Edward Kozial.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: September 20, 1997 TREASURY INTERNATIONAL, INC.
By: /s/
James Hal
President and Chief Executive Officer
AGREEMENT
THIS AGREEMENT dated as of September 19, 1997 is made by and among
TREASURY INTERNATIONAL, INC., a Delaware corporation ("Treasury"), JAMES HAL, an
individual ("Hal"), SILVER 925, INC., a Florida corporation ("Silver"), and each
of MOCHE BENDAYAN, SALOMON BENDAYAN and EDWARD KOZIAL (each of such individuals
being hereinafter referred to as a "Purchaser" and collectively as the
"Purchasers").
WHEREAS, the parties hereto entered into an Agreement dated as of June 18,
1996 which was subsequently amended pursuant to an Amendment to Agreement dated
as of February 25, 1997 (as amended, the "Silver Purchase Agreement"), pursuant
to which Treasury purchased from the Purchasers 70.77 shares of the common stock
of Silver (the "Shares"), representing all of the issued and outstanding capital
stock of Silver, for a total consideration of $2,000,000 payable in five annual
installments of $400,000 consisting of cash and common stock of Treasury (the
transactions contemplated by the Silver Purchase Agreement are hereinafter
referred to as the "Silver Acquisition");
WHEREAS, to secure the payment of the consideration for the Silver
Acquisition, Treasury has pledged the Shares to the Purchasers;
WHEREAS, as of the date hereof Treasury has paid to Silver an aggregate of
$40,000 and delivered to the Purchasers an aggregate of 525,000 shares of common
stock of Treasury pursuant to the Silver Purchase Agreement to the Purchasers in
the following amounts: 236,250 to Moche Bendayan; 236,250 to Salomon Bendayan;
and 52,500 to Edward Kozial;
WHEREAS, Silver is currently indebted to Republic National Bank ("RNB") in
the principal amount of $1,346,221.00 pursuant to a Letter Agreement and related
documents dated as of May 17, 1996, as amended, and Treasury and Hal have each
guaranteed the outstanding indebtedness of Silver to RNB pursuant to two
Guaranty agreements dated as of May 17, 1997 (the "Guaranty Agreements", and
collectively with the foregoing documents, the "RNB Loan Documents");
WHEREAS, Silver, Moche Bendayan and Salomon Bendayan are, simultaneously
with the execution of this Agreement, entering into a Settlement Agreement with
RNB (the "Settlement Agreement") pursuant to which the obligations to RNB under
the RNB Loan Documents will be satisfied under the terms of the Settlement
Agreement; and
WHEREAS, Treasury, in conjunction with the execution of the Settlement
Agreement, wishes to resell to the Purchasers and the Purchasers desire to
repurchase from Treasury the Shares and the parties have reached agreement on
other matters as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Repurchase of Shares. (a) Subject to the terms and conditions of this
Agreement, Treasury hereby sells, transfers and assigns to each Purchaser, and
shall cause to be delivered and hereafter authorizes the holder of such Shares
to deliver, to each Purchaser certificates representing the number of Shares set
forth below opposite each Purchaser's name, the Shares being sold "as is"
without any representation, warranty or covenant as to title or ownership:
Moche Bendayan 45 Shares
Edward Kozial 20.77 Shares
Salomon Bendayan 5 Shares
(b) The Purchasers shall sign all documents and perform all other
acts necessary or advisable to effectuate the aforementioned repurchase of
Shares.
2. Consideration. In consideration for the repurchase of the Shares and in
lieu of any further consideration payable by Treasury to the Purchasers under
the Silver Purchase Agreement, Treasury hereby sells, transfers and assigns to
each Purchaser below, and hereby delivers to each such Purchaser certificates
representing, the number of shares of common stock of Treasury set forth below
opposite each Purchaser's name (such shares, together with the 525,000 shares of
Treasury's common stock heretofore issued pursuant to the terms of the Silver
Purchase Agreement, are hereinafter referred to as the "Treasury Shares"):
Moche Bendayan 113,750 Treasury Shares
Salomon Bendayan 113,750 Treasury Shares
3. Registration.
(a) Piggyback Registration. If Treasury at any time commencing from
the date hereof until December 31, 2000 proposes to register any of its common
stock under the Securities Act of 1933, as amended (the "Securities Act"),
Treasury shall, or, if applicable, shall request that the underwriter of such
underwritten offering, include the Treasury Shares in such registration. The
registration statement shall be effective for 60 days only. If such underwriter
agrees to include any of the Treasury Shares in the underwritten offering,
Treasury shall give prompt written notice to the Purchasers of its intention to
effect such registration and of the Purchasers' rights under such proposed
registration, and upon the written request of any Purchaser delivered to
Treasury within fifteen (15) days after giving such notice (which request shall
specify the Treasury Shares intended to be disposed of by such Purchaser),
Treasury shall include such Treasury Shares held by the Purchasers in such
registration; provided, however, that:
(i) If, at any time after giving such written notice of
Treasury's intention to register any of the Treasury Shares and prior to the
effective date of the registration statement filed in connection with such
registration, Treasury shall determine for any reason not to register or to
delay the registration of such the shares to be so registered, including the
Treasury Shares, in its sole discretion, Treasury shall give written notice of
such determination to the Purchasers and thereupon shall be relieved of its
obligation to register any such shares (but not from its obligation to register
the Treasury Shares in a subsequent registration) and, in the case of a
determination to delay a registration, shall thereupon be permitted to delay
registering any Treasury Shares for the same period as the delay with respect to
securities being registered for Treasury's own account.
(ii) If the underwriter in such underwritten offering shall
advise Treasury that it declines to include a portion or all of the Treasury
Shares requested to be registered by the Purchasers, then all or a specified
portion of the Treasury Shares shall be excluded from such registration
statement (in case of an exclusion as to a portion of such Treasury Shares, such
portion to be allocated among the Purchasers in proportion to the respective
numbers of Treasury Shares requested to be registered by each such Purchaser).
In such event Treasury shall give the Purchasers prompt written notice of the
number of Treasury Shares excluded. The Purchasers shall execute and/or deliver
such documents in connection with such registration as Treasury or the
underwriter may reasonably request. Such registration may contain such other
terms and conditions which are usual and customary under the circumstances.
(iii)The foregoing right shall terminate upon the effectiveness
of a registration statement or statements covering all of the Treasury Shares.
(b) Demand Registration.In the event that the Purchasers have not
been afforded the opportunity to dispose of their Treasury Shares pursuant to
Section 3(a) above prior to December 15, 1998, then, provided that Treasury
meets all of the criteria for filing a registration statement on Form S-3, upon
the written request of all of the Purchasers, Treasury shall, on one occasion,
effect the registration of the Treasury Shares as soon as practicable, but no
later than 60 days after receipt of the written request from all of the
Purchasers; provided, however, that such period may be extended or delayed by
Treasury for one period of up to 120 days if Treasury is advised by counsel at
the time such registration is required to be filed that a delay is in the best
interests of Treasury. Such registration may contain such other terms and
conditions which are usual and customary under the circumstances. In the event
that any Purchaser, after being given the opportunity to register his Treasury
Shares pursuant to this Section 3(b), chooses not to so register his Treasury
Shares, Treasury shall have no further obligation under Section 3(b) to the
Purchasers.
(c) Registration Expenses. The Company shall pay (i) all expenses
incurred in any registration of the Purchasers' Treasury Shares under this
Agreement, including, without limitation, printing expenses, fees and
disbursements of counsel for Treasury (but not any counsel retained by the
Purchasers), expenses of any audits to which Treasury shall agree or which shall
be necessary to comply with governmental requirements in connection with any
such registration, and expenses of complying with the securities or blue sky
laws of any applicable jurisdictions, and (ii) all reasonable registration and
filing fees for the Purchasers' Treasury Shares under Federal and state
securities laws, any stock transfer taxes incurred with respect to the Treasury
Shares sold in the registration, and the fees and expenses of counsel.
4. Conditional Releases.
(a) Purchasers' Conditional Release and Conditional Discharge of
Treasury and Hal. Subject to and conditioned upon the fulfillment of either (i)
the release of Treasury and Hal from RNB in respect of any Claims (as defined
below) which RNB may have against Treasury and/or Hal in connection with the RNB
Loan Documents, or (ii) full performance by or on behalf of Silver of the terms
of the Settlement Agreement, each Purchaser hereby releases and discharges
Treasury, James Hal, their affiliates, subsidiaries, predecessors, assigns,
successors in interest, directors, officers, employees, agents and any
representative, assignee, beneficiary, heir, executor or administrator of any of
them (collectively, the "Treasury Releasees"), as applicable, from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions, claims
and demands whatsoever, in law or equity, and any and all further performance
(collectively, the "Claims"), which any Purchaser, any Purchaser's successors or
assigns ever had, now have or hereafter can, shall or may have, for, upon, or by
reason of any matter, cause or thing whatsoever from the beginning of the world
to the date of this release other than under this Agreement, including but not
limited to the following (each dated February 25, 1997 unless otherwise
indicated)(collectively, the "Silver Documents"):
(i) The Silver Purchase Agreement;
(ii) The Security Agreement between Treasury and
the Purchasers, granting the Purchasers a first
lien on the Shares;
(iii)The letter of Treasury to the Purchasers
acknowledging receipt of certain loan documents
in connection with the RNB Loan Documents and
assuming the risk of default thereunder;
(iv) The Indemnification Agreement between
Treasury, Hal, Salomon Bendayan and Moche
Bendayan, regarding the Guaranty Agreements;
(v) The Employment Agreement between Silver and
Moche Bendayan, accepted by Treasury as to
Section 3.3 thereof;
(vi) The Non-Qualified Stock Option Agreement
between Treasury and Moche Bendayan; and
(vii)The Irrevocable Instructions of Treasury to
Intercontinental Registrar & Transfer Agency,
Inc.
(b) Treasury's and Hal's Conditional Release and Conditional
Discharge of the Purchasers. Subject to and conditioned upon the fulfillment of
either (i) the release of Treasury and Hal from RNB in respect of any Claims
which RNB may have against Treasury and/or Hal in connection with the RNB Loan
Documents, or (ii) full performance by or on behalf of Silver of the terms of
the Settlement Agreement, each of Treasury and James Hal hereby releases and
discharges each of the Purchasers, their affiliates, subsidiaries, predecessors,
assigns, successors in interest, directors, officers, employees, agents and any
representative, assignee, beneficiary, heir, executor or administrator of any of
them (collectively, the "Purchaser Releasees"), as applicable, from all Claims,
which either Treasury or James Hal, any of their successors or assigns ever had,
now have or hereafter can, shall or may have, for, upon, or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the date of
this release, including claims under the Silver Documents.
5.Resignation of Hal as Director and Officer of Silver. Hal hereby resigns
as director and officer of Silver, effective immediately.
6. Notification of Intercontinental Registrar & Transfer Agency, Inc. Each
of the Purchasers shall sign all documents and perform all other acts necessary
to advise the aforementioned transfer agent that the irrevocable instructions
received by the transfer agent pursuant to the Silver Acquisition are
immediately revoked and to issue new instructions consistent with the terms and
conditions set forth in this Agreement.
7. Representations, Warranties and Covenants of Treasury and Hal. Each of
Treasury and Hal represents and warrants to, and agrees with, the Purchasers as
follows:
(a) Treasury is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as now conducted and as
proposed to be conducted.
(b) All corporate action on the part of Treasury and other action on
the part of Hal necessary for the authorization, execution and delivery of this
Agreement and the performance of all obligations of Treasury and Hal hereunder
have been taken, and this Agreement constitutes a valid and legally binding
obligation of Treasury and Hal enforceable in accordance with its terms.
(c) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby do not and will not conflict with or
result in a breach by Treasury or Hal, as applicable, of any of the terms or
provisions of, or constitute a default under, the Certificate of Incorporation
or By-Laws of Treasury, or any indenture, mortgage, deed of trust or other
material instrument to which Treasury or Hal is a party or by which Treasury,
Hal or any of their properties or assets are bound, or any applicable decree,
judgment or order of any court, federal or state regulatory body, administrative
agency or other governmental body having jurisdiction over Treasury or Hal or
any of their properties or assets.
8. Representations, Warranties and Covenants of the Purchasers. Each of the
Purchasers represents and warrants to, and agrees with, Treasury and Hal as
follows:
(a) All action on the part of each of the Purchasers necessary for
the authorization, execution and delivery of this Agreement and the performance
of all obligations of each of the Purchasers hereunder has been taken, and this
Agreement constitutes a valid and legally binding obligation of each of the
Purchasers enforceable against each of them in accordance with its terms.
(b) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby do not and will not conflict with or
result in a breach by any of the Purchasers of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust or
other material instrument to which any of the Purchasers is a party or by which
any of the Purchasers is bound, or any applicable decree, judgment or order of
any court, federal or state regulatory body, administrative agency or other
governmental body having jurisdiction over any of the Purchasers or any of their
properties or assets.
(c) Each Purchaser acknowledges that the Treasury Shares have not
been registered under the Securities Act or under the securities laws of certain
states and, therefore, cannot be resold, pledged, assigned or otherwise disposed
of unless the securities are subsequently registered under the Securities Act
and under the applicable securities laws of such states or unless an exemption
from such registration, whether pursuant to Rule 144 under the Securities Act or
otherwise, is available in the opinion of counsel for the holder, which counsel
and opinion are reasonably satisfactory to counsel for Treasury. Each Purchaser
is acquiring and will be acquiring the Treasury Shares for such Purchaser's own
account, for investment and not with a view to resale or distribution except in
compliance with the Securities Act. Each Purchaser hereby agrees that the
following legends shall be inscribed on all certificates representing the
Treasury Shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS AND CANNOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
APPLICABLE STATES SECURITIES ACT WHICH, IN THE OPINION OF COUNSEL FOR THE
HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO COUNSEL FOR
TREASURY, IS AVAILABLE."
9. Further Assurances. Subject to the terms of this Agreement, each of the
parties hereto will use all reasonable efforts to take, or cause to be taken,
all action, and to do, or cause to be done, all things necessary, proper or
advisable, under applicable laws and regulations or otherwise, to fulfill its or
his obligations under this Agreement and to consummate the transactions
contemplated by this Agreement.
10. Notices. Any notice under this Agreement shall be in writing and shall
be given by sending the same by prepaid post (first class or airmail),
facsimile, express courier or by hand delivery to the following addresses (or to
such other address as a party may instruct by proper notice given under this
Agreement). Notices sent by post shall be deemed given three (3) days after
dispatch; notices sent by facsimile shall be deemed given upon confirmation of
transmission; notices sent by express courier shall be deemed given one (1) day
after dispatch; and notices sent by hand delivery shall be deemed given upon
actual receipt.
To Treasury and/or Hal:
Treasury International, Inc.
1183 Finch Avenue West
North York, Ontario M3J 2G2
Attn: President
Facsimile: 416-663-5509
With a copy to:
Piper & Marbury L.L.P.
1251 Avenue of the Americas
New York, New York 10020-1104
Attn: Paul J. Pollock, Esq.
Facsimile: 212-835-6001
To Silver and/or Salomon Bendayan and Moche Bendayan:
6905 Talavera Street
Coral Gables, FL 33146
Facsimile: (305) 666-7299
With a copy to:
Delgado, Befeler, Starkman & Magolnick, P.A.
NationsBank Tower
100 Southeast 2nd Street, 37th Floor
Miami, Florida 33131
Attn: George Befeler, Esq.
Facsimile: 305-379-4404
To Kozial
_________________________
_________________________
11. Miscellaneous. This Agreement (a) shall be subject to and
interpreted in accordance with the laws of the State of Delaware applicable to
contracts made and to be wholly performed within that State (without reference
to its conflict of laws rules), (b) may be amended only in writing signed by the
parties, (c) expresses the entire agreement of the parties with respect to its
subject matter, and (d) shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. Any dispute between the
parties arising out of this Agreement shall be resolved exclusively in the
courts of the State of Florida and any legal proceedings commenced hereunder
shall be brought in the courts of Dade County, Florida. This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same Agreement,
and facsimile signatures shall be deemed to be original signatures for execution
purposes.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TREASURY INTERNATIONAL, INC.
By: /s/ James Hal
Name: James Hal
Title: President
/s/ James Hal
JAMES HAL
SILVER 925, INC.
By: /s/ Salomon Bendayan
Name: Salomon Bendayan
Title: President
/s/ Moche Bendayan
MOCHE BENDAYAN
/s/ Edward Kozial
EDWARD KOZIAL
/s/ Salomon Bendayan
SALOMON BENDAYAN