AMENDMENT
to the English version of the Acquisition Agreement concluded on February 12,
1999, by and between Central European Distribution Corporation, Carey Agri
International Poland Sp. z o.o. and Multi Trade Company, hereinafter refered to
as "the Agreement", which is amended as set forth in Section 2 hereof.
SECTION 2 In the English version of the Agreement the following changes
shall be made::
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1. In the third indent of the Agreement the word "sell" shall be replaced by the
word "transfer". As a result the third indent of the Agreement shall be worded
as follows:
"WHEREAS, the Company and the Partners possess all of the rights required and
necessary to use and to Assign as a contribution in kind the Trademark and
Tradename and desire to TRANSFER and assign the Trademark and Tradename to Buyer
pursuant to the terms and conditions hereof;"
2. In the title of Section 2.1 "Contribution and Assumption of Securities" the
words "of Trademark and Tradename" shall be added. As a result the title of
Section 2.1 of the Agreement shall be worded as follows:
"2.1. Contribution OF TRADEMARK AND TRADENAME and Assumption of Securities"
3. In Section 2.3 "Sale of Assets and Assumption of Liabilities" of the
Agreement the word "herein" shall be replaced by the words "in Asset Purchase
Agreement". As a result Section 2.3 of the Agreement shall be worded as follows:
"Buyer and Carey Agri agrees to cause Newco to buy those certain assets of the
Company and assume those certain liabilities of the Company as set for on the
schedules to that certain Asset Purchase Agreement, attached thereto as EXHIBIT
E ("Asset Purchase Agreement") and on the terms and conditions set forth herein
and IN ASSET PURCHASE AGREEMENT.
4. In Section 2.4 "Purchase Price for the Assets", subsection (b)(ii) the
numerical punctuation shall be adjusted to the American standard. As a result
subsection (b)(ii) shall be worded as follows:
"(ii) the book value as of February 28, 1999 of any or all of the five vehicles
currently used in connection with the business of the Company, namely a Mercedes
350 registration number BIK 9000 in the amount of 65,858.97 PLN, a Jaguar XJ6
registration number BIB 9000 in the amount of 3,095.94 PLN, a Chevrolet Corvette
registration number BIK 3000 in the amount of 10,098.34 PLN, a Ford Taurus
registration number BTB 6000 in the amount of 0 PLN, a Mercedes ML 320
registration number BIM 6000 in the amount of 203,245.21 PLN retained by the
Company, subject to adjustments;"
5. In Section 2.4 "Purchase Price for the Assets", subsection (b)(vi) shall be
amended by the words "and the Tradename". As a result subsection (b)(vi) shall
be worded as follows:
"(vi) 50% of the amount of the stamp duty on the contribution of the Trademark
AND THE TRADENAME between Newco and CEDC in the approximate amount of 18,000
USD;"
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6. In Section 3.2 "Access; Investigations by Buyer; Confidentiality", subsection
(c) the amount of "1,486,000" shall be replaced by the amount of "1,486,463.41".
As a result subsection (c) shall be worded as follows:
"Buyer's investigation of the financial and operating data, assets, real
property and other information with respect to the businesses and assets of
Company shall in no way affect the obligations of Company and each of the
Partners with respect to the agreements, representations, warranties, covenants
and indemnification provisions set forth in this Acquisition Agreement and the
Related Agreements. Profits distributed to the Partners until September 9, 1998
shall not affect the Purchase Price (as of September 30, 1998 profits
distributed to the Partners in the gross amount of 1,486,463.41 PLN, i.e.:
personal income tax included)."
7. In Section 3.3 "Operation of the Business of the Company", subsection (b)
shall be worded as follows:
"Except as contemplated by this Acquisition Agreement or as reasonably may be
required to carry out its obligations hereunder Company shall, through the
Closing Date, conduct its business only in the Ordinary Course of Business
unless the consent of Carey Agri is provided, and, in addition, not:"
8. In Section 3.3 "Operation of the Business of the Company", subsection (d)
shall be amended by the words "(Formularz F-01)". As a result subsection (d)
shall be worded as follows:
"Company shall keep proper books of record and account in which true and
complete entries will be made of all transactions in accordance with generally
accepted accounting principles in Poland applied on a basis consistent with
prior periods, and shall supply to Buyer monthly unaudited consolidated balance
sheets and statements of income of Company (FORMULARZ F-01), so prepared, as
soon as practicable after the end of each month. All such financial statements
shall be considered attached to and made a part hereof."
9. In Section 3.3 "Operation of the Business of the Company", subsection (g) the
amount of "1,486,000" shall be replaced by the amount of "1,486,463.41". As a
result the last sentence of subsection (c) shall be worded as follows:
"Profits distributed to the Partners until September 9, 1998 shall not affect
the Purchase Price (as of September 30, 1998 profits distributed to the Partners
amount to 1,486,463.41 PLN).
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10. In Section 3.4 "No Inconsistent Negotiations", subsection (ii) shall be
amended by the words "any Proposal". As a result subsection (ii) shall be worded
as follows:
"(ii) participate in any negotiations regarding ANY PROPOSAL, or furnish to any
other person, entity or group any non-public information with respect to, or
otherwise cooperate in any way with, or encourage, any effort or attempt by any
other person, entity or group to do or seek any of the foregoing."
11. In Section 3.6 "Management Agreements", subsections (c) and (d) the words
"board of management" shall be replaced by the words "Management Board". As a
result subsections (c) and (d) shall be worded as follows:
"(c) Buyer and Carey Agri agree to cause Newco to name the Partners as two of
the members of the MANAGEMENT BOARD of Newco as of the Closing Date, and the
Partners agree so to serve. (d) Buyer and Carey Agri agree to name one of the
Partners as a member of the MANAGEMENT BOARD of Carey Agri as of the Closing
Date and each of the Partners agrees to serve as requested."
12. In Section 4.6 "Taxes", subsection (b) the first sentence shall be amended
by words "and/or has not been questioned". As a result the first sentence of
subsection (b) shall be worded as follows:
"(b) Company Tax Returns have been examined AND/OR HAS NOT BEEN QUESTIONED from
time to time by the relevant taxing authorities, and all deficiencies proposed
as a result of such examinations have been paid or settled, for all taxable
years prior to and including the taxable year ended 1998."
13. In Section 4.8 "Real Property", subsection (e) the first sentence shall be
amended by words "in the scope described in Exhibit I hereof". As a result the
first sentence of subsection (e) shall be worded as follows:
"None of the Real Property, IN THE SCOPE DESCRIBED IN EXHIBIT I HEREOF, is
subject to any Agreement or other restriction of any nature whatsoever (recorded
or unrecorded) preventing or limiting Company's right to convey or to use it."
14. In Section 8.6 "Adjustment of Assets and Liabilities at Closing", subsection
(b) the word "asset" shall be replaced by the word "liabilities". As a result
subsection (b) shall be worded as follows:
"(b) Immediately prior to Closing Date, the Company shall update Exhibit B to
the Assets Purchase Agreement. The parties agree that the net value of the
liabilities on the updated exhibits shall be approximately the same as that
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on the original exhibit or the parties shall discuss an adjustment in the
Purchase Price. Immediately after the Date of Closing, the LIABILITIES list
shall be finalized to reflect those liabilities assumed by Newco."
15. In Section 9.3 "Legal Proceedings" the words " or the Related Agreements"
shall be deleted. Furthermore, this Section shall be amended by the words "or by
the Related Agreements", which results in the following wording:
"No action or proceeding by or before any governmental authority shall have been
instituted or threatened (and not subsequently settled, dismissed or otherwise
terminated) which is reasonably expected to restrain, prohibit or invalidate the
transactions contemplated by this Acquisition Agreement OR BY THE RELATED
AGREEMENTS, other than an action or proceeding instituted or threatened by
Buyer, Carey Agri, or Newco."
16. The title of Section 9.4 "Approval of Board of Directors" shall be replaced
by the words "Approval of Management Board". Furthermore, in this Section the
words "Board of Directors" shall be replaced by "Management Board". As a result
Section 9.4 shall be worded as follows:
"The Acquisition Agreement and the transactions contemplated thereby shall be
approved by the MANAGEMENT BOARD of Buyer and the Management Board of Carey Agri
as soon as possible after the signing of this Agreement."
17. In Section 9.6 "Consents" the word "Schedule" shall be replaced by the word
"Section".
18. In Section 10.4 "Deliveries by Buyer", subsection (c) the words "Board of
Directors" shall be replaced by the words "Management Board". As a result
subsection (c) shall be worded as follows:
"(c) a certified copy of the resolutions adopted by the Management Board of
Buyer authorizing the transactions contemplated by this Acquisition Agreement;
and"
19. The Section 10.6 "Deliveries by Newco" shall have the following wording:
"10.6 Deliveries by Newco At the Closing, Buyer and Carey Agri shall cause Newco
to perform the following: (a) wire funds to the Company in the amount of the
Purchase Price for the Assets;
(b) deliver to the Escrow Agent, the Escrow Deposit; and
(c) deliver such other s as the Partners may reasonably request, to be
requested no later than five business days prior to Closing."
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20. In Section 12.2 "Effect of Termination" the text in the brackets shall be
amended by adding the words "of the obligations". As a result the last sentence
of Section 12.2 shall be worded as follows:
"The parties hereto shall have any and all remedies to enforce such obligations
provided at law or equity (including, without limitation, specific performance
OF THE OBLIGATIONS)."
21. In Section 13.5 "Entire Agreement; Amendment" the word "Schedule" shall be
replaced by the word "Exhibits".
22. In Section 13.7 "Consent to Jurisdiction and Arbitration", in the last
sentence the word "courts" shall be singular. As a result the last sentence of
Section 13.7 shall be worded as follows:
"For such purpose, Buyer, Carey Agri, Company and each of the Partners hereby
irrevocably submit to the non-exclusive jurisdiction of such COURT, and agrees
that all claims in respect of this Acquisition Agreement and the Related
Agreements may be heard and determined by such court."
23. In Section 13.10 "Notices" the numbering shall be unified. Furthermore,
after subsection (v) (according to the correct numbering) another address shall
be added. As a result, address part of Section 13.10 shall be worded as follows:
"(i) If to Buyer:
Central European Distribution Corporation
1343 Main Street - Suite 301
Sarasota, Florida 34236
Attn.: Mr. William V. Carey
tel: (941) 330 - 1558
fax: (941) 330 - 9617
with a copy (which shall not constitute notice) to:
Carey Agri International Poland Sp. z o.o.
ul. Lubelska 13, 03-802 Warszawa
Mr. William V. Carey
tel.: (48)(22)618 50 25, 618 05 77
fax: (48)(22)618 0238
(ii) If to Carey Agri:
ul. Lubelska 13, 03-802 Warszawa
Attn: Mr. William V. Carey
tel.: (48 22) 618 50 25, (48 22) 618 05 77
fax: (48) (22) 618 0238
(iii) If to Newco:
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MTC SP. Z O.O.
UL. LUBELSKA 13, 03-802 WARSZAWA
ATTN: MR. WILLIAM V. CAREY
TEL.: (48 22) 618 50 25, (48 22) 618 05 77
FAX: (48) (22) 618 0238
with a copy (which shall not constitute notice) to:
Hogan & Hartson Sp. z o.o.
Al. Jana Pawla 25
00 - 854 Warszawa
Attn: Elzbieta Koper, Halina Wieckowska
tel: (48 22) 653 42 00
fax: (48 22) 653 42 50
(iv) If to Company:
Multi Trade Company s.c.
ul. Baranowicka 117
15 - 501 Bialystok
Attn: Wojciech Strza(3)kowski, Wojciech Wasilewski
(v) If to the Partners:
Wojciech Strza(3)kowski
ul. Starobojarska 27 M. 1
15 - 073 Bialystok
tel.: (48) 601 91 56 01
Wojciech Wasilewski
ul. Basniowa 84
15 - 157 Bialystok
tel.:(48) (15) 676 20 74
with a copy (which shall not constitute notice) to:
Leszek Berger
Kancelaria Prawa Gospodarczego
ul. Krakowskie Przedmieoecie 47/51
00-071 Warszawa
tel.: (48 22) 826 32 09
fax.: (48 22) 826 40 10
SECTION 3. Binding Effect
This Annex to the Acquisition Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors, heirs,
executors, administrators, legal representatives and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Annex to
the Acquisition Agreement, or have caused this Annex of the Acquisition
Agreement to be duly executed on their behalf, as of March 12, 1999.
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CENTRAL EUROPEAN DISTRIBUTION CORPORATION
/s/ WILLIAM V. CAREY
----------------------------------------
By: William V. Carey
Chairman of the Board
CAREY AGRI INTERNATIONAL POLAND SP. Z O.O.
/s/ WILLIAM V. CAREY
----------------------------------------
By: William V. Carey
Managing Director
THE PARTNERS In their own name and on behalf of MULTI TRADE COMPANY
/s/ WOJCIECH STRZAKOWSKI /s/ WOJCIECH WASILEWSKI
- ------------------------- ----------------------------------------
Wojciech Strzakowski Wojciech Wasilewski
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