Exhibit 2.2
Share Purchase Agreement
Signed on the 24 of April 2002 by and between:
1. Carey Agri International Poland Sp. z o.o. ("Carey Agri") whose
registered seat is at ul. Bokserska 66A, 02-690 Warsaw, Poland,
represented by William V.Carey,
2. Central European Distribution Corporation ("CEDC") whose registered seat
is at 1343 Main Street, # 301, Sarasota, Florida 34236 USA, represented
by William V.Carey,
(jointly referred to as the "Buyers")
and
3. Jacek Luczak domiciled at ul. Krakowska 2, 87-100 Torun, Poland
4. Slawomir Wisniewski domiciled at Kowalki 75, 87-500 Rypin, Poland
(jointly referred to as the "Sellers")
RECITALS
A. The Sellers holds 100 percent of the share capital ("Shares") in AGIS
S.A. ("Company") whose registered seat is at Szosa Chelminska 26,
87-100 Torun, Poland, registered with the National Court Register of
the District Court in Torun under KRS number 000010340.
B. The Sellers have agreed to sell to the Buyers all the Shares in the
Company.
C. The Sellers and the Buyers concluded on 13 February 2002 the Letter of
Intent ("Letter of Intent"). All actions and conditions defined in the
Letter of Intent, in accordance with the conclusion of this Agreement,
have been fulfilled.
1. DEFINITIONS
In this Agreement the following expressions shall be taken to mean as
follows:
"Company" - shall mean Agis S.A.
"Shares" - shall mean 25.000 of the Company bearer shares with face
value of PLN 100 each share, constituting the entire share
capital of the Company.
"Price" - shall mean the purchase price of 100% of the Shares in the
Company, as defined in clause 3.1 of this Agreement.
"Closing Date" - shall mean the day of signing the Share Purchase Agreement.
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"CEDC Stock" - shall mean the shares of Central European Distribution
Corporation, a company listed on NASDAQ in the United
States of America, number and value of which is defined in
clause 3.3. and 3.5.1. of this Agreement.
2. SALE AND PURCHASE
2.1. Upon the terms and subject to the conditions contained in this
Agreement the Sellers agree to sell and the Buyers agree to buy,
acquiring the Shares free of any liens, encumbrances and third
party rights.
2.2. Carey Agri shall purchase 60 % (i.e.15.000) of the Company Shares
and CEDC shall purchase 40% (i.e.10.000) of the Company Shares.
3. PURCHASE PRICE
3.1. The purchase price for the Shares shall be PLN 26,903,708.00
("Price").
3.2. PLN 18,728,708.00 shall be paid in cash.
3.3. PLN 8,175,000.00 shall be paid in CEDC Stock.
3.4. The Buyers shall make the cash payment mentioned in clause 3.2 to
the Sellers on the Closing Date in accordance with the table
below:
Transfer to:
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CEDC Carey Total
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Mr. Jacek Luczak 1 293 241,60 8 071 112,40 9 364 354,00
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Mr. Slawomir Wisniewski 1 293 241,60 8 071 112,40 9 364 354,00
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18 728 708,00
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3.5. The Buyers shall make the payment mentioned in clause 3.3 to the
Sellers in accordance with the following conditions:
3.5.1. The number of CEDC Stock Shares (172 676) to be received by
the Sellers was based on 180 days average CEDC Stock price
before the Closing Date being $1,7241, calculated upon the
NBP average exchange rate published on the 23/rd/ of April
2002 (table nr 79) being 4,0381 PLN.
3.5.2. The CEDC Stock covering the respective number of shares
calculated as in clause 3.5.1 shall be issued to Mr.
Slawomir Wisniewski and Mr. Jacek Luczak (86,338 each) and
delivered to the Sellers within 30 days from the Closing
Date, with the lock-up period of 6 months.
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4. PRICE ADJUSTMENT
4.1. The Price assumes that the Company's value of receivables being
more than 60 days past due (excluding the reserves created in
2001) on the 30 April 2002 shall not exceed the value of 2,400,
000.00 PLN. Verification of receivables on 30 April 2002 shall be
made on 20 May 2002. If the value of the receivables over 60 days
past due (including reserves created in 2002) is more than 2,400,
000.00 PLN, the Buyer shall reduce the Price by the amount
exceeding the above sum. The Buyers will deduct by this amount
payment of dividend to be paid to the Sellers on the 31st of May
2002.
4.2. The Sellers guarantee that receivables more than 60 days past due
on 30 June 2002 shall be at the same level as on 30 April 2002.
Verification of receivables on 30 June 2002 shall be made on 20
July 2002. If the amount of receivables on the 30 June 2002 will
be higher the difference will be paid to the Buyer within 7 days.
4.3. If the amount specified in the 4.2. is not paid within 7 days, the
Buyers will deduct by this amount payment of dividend which is
scheduled to be paid to the Sellers on the 31 July 2002.
5. CLOSING
The Closing Date shall be the day of signing of this Agreement. On the
Closing Date, the parties shall take the following actions.
5.1. The Sellers shall transfer the Shares to the Buyers by handing
over their certificates to the Buyers.
5.2. The Buyers shall transfer the cash portion of the Price mentioned
in clause 3.2 to the Sellers, according to the table from clause
3.4, to the following bank accounts:
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CEDC Carey Bank No. Konta
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Slawomir 5 618 612,40 Kredyt Bank S.A. O/Torun 15001751-101750007863
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Wisniewski 1 293 241,60 2 452 500,00 BIG Oddzia(3)Milenium w Gdansku 11602202-0028582644
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Jacek 3 000 000,00 BRE Bank S.A. - mBank 11402004-310215067434
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Luczak 3 000 000,00 BIG Bank Gdanski IV O/Gdansk 11601322-68136-23-1713972-1
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1 293 241,60 2 071 112,40 Kredyt Bank S.A. O/Torun 15001751-101750008857
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If within 7 days from the Closing Date, the Sellers will not
receive stated in the above table cash payment, then the Sellers
will be in title to claim the full amount of the payment (18,728,
708.00 PLN) with the interest or alternatively return of the
shares.
5.3. The Buyers shall provide the Sellers with the Lock-up Letters
("Lock-up Letters"), and the Sellers shall sign the Lock-up
Letters and give them back to the Buyers. The Lock-up Letters are
attached as Schedule 1 to this Agreement.
5.4. The Buyers shall cause the Company and the Sellers to execute
employment contracts, attached as Schedule 2 to this Agreement.
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6. ACTIONS AFTER CLOSING
6.1. The Buyers shall deliver to the Sellers the CEDC Stocks as
described in clause 3.5 within 30 days from the Closing Date.
6.2. The Buyers shall take over the guarantees issued personally by the
Sellers in connection with the existing bank and suppliers'
credits of the Company within 90 days from the Closing Date. The
parties shall cooperate in good faith to ensure respective
consents from the banks (if required).
6.3. The parties agree that representation funds of the Company, after
the Closing Date shall be used consistently with the way in which
they were used during the period prior to the Closing Date.
6.4. The parties agree that the Sellers are entitled to obtain the
dividends for results achieved in the year 2001. The dividend in
amount PLN 5,790,900.00 (gross) to be paid to the owners does not
exceed 90% of the net profit of Company for the year 2001. The
dividend shall be paid to the Sellers in three equal installments
in amount of PLN 1,930,300.00 (gross) on the following days:
- May 31st 2002
- July 31st 2002
- September 30th 2002
6.5. The parties agree that there shall not be any dividend paid out to
the Sellers for the results achieved during the year 2002 up to
the Closing Date.
6.6. Within 3 months from the Closing Date the parties shall agree a
Bonus Scheme for the Sellers based on their performance under the
CEDC bonus scheme. The principles used for calculation of the
performance bonus shall be attached in the form of Schedule 5 to
this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers hereby jointly and severally represent and warrant to the
Buyers that each of the following representations and warranties is true
and accurate:
7.1. The Company has been duly organized and validly exists under the
laws of the Republic of Poland.
7.2. The Shares have been duly created and are fully paid and free and
clear of any and all liens, encumbrances, pledges and third party
rights.
7.3. The transfer of the Shares to the Buyers shall not give a legal
reason to any third party to terminate or modify any agreements to
which the Company is a party. As of the date of signing this
Agreement the Sellers are unaware of any intent by suppliers or
customers to stop co-operation with the Company.
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7.4. The execution of this Agreement and the performance of the obligations
set forth herein have been duly authorized by the Sellers and will not
result in violation of any law, decree or regulation, any contract to
which either of the Sellers is a party, or by which it or its property
may be bound, any judgment of any court, or any permit or approval of
any governmental agency;
7.5. This Agreement constitutes a valid and legally binding obligation of
the Sellers, enforceable in accordance with its terms.
7.6. The Sellers caused that the trademark "AGIS" registered in the Patent
Office under No.102870 has been transferred to the Company and caused
that application on re-registration of the trademark in the Patent
Office for the benefit of the Company was submitted. The copy of
registration certificate of trademark is attached as Schedule 3 to
this Agreement.
7.7. The land and buildings owned by the Company have been sold before the
Closing Date to the third parties for the price of PLN 4,107,885.72.
Full payment for land and buildings to the Company shall be realized
within 7 days from the Closing Date. If the payment, or part thereof,
for land and buildings is not realized within the above term, then the
respective amount shall be deducted from dividends to be paid to the
Sellers according to clause 6.4. The above deduction shall also
include a statutory interest calculated on the payment (or part
thereof) from the 1 May 2002 until the day of the respective setoff.
The Company and party purchasing the land and buildings have paid the
tax on civil law transactions connected with purchasing of the land
and buildings calculated on amount of PLN 3,062,000.00, 50% each.
7.8. The right to purchase the warehouse in Brodnica, owned by the Company
has been sold to the Sellers before the Closing Date, for the price of
PLN 143,077.44. The Company and the Sellers 50% each have paid cost of
the tax on civil law transactions an notary fees connected with
purchasing of the rights.
7.9. Real property needed for current operation of the Company have been
leased to the Company under the agreed terms. Lease Agreements are
attached as Schedule 4 to this Agreement.
7.10. From the conclusion date of the Letter of Intent until the Closing
Date, the Company's business continued in the normal course,
consistent with the way the business had been run during the period
prior to the date of the Letter of Intent. The Company did not raise
the employee salaries above the levels prevailing on 1 December 2001,
increased by the inflation rate (5%) and did not acquire or dispose of
any fixed assets with a value exceeding PLN 20,000.00 without written
consent of the Buyers, excluding the Company's land and buildings, the
Company's rights to purchase the warehouse in Brodnica, and two
Company cars - Dodge Van valued at approx. PLN 45,000.00 and Pontiac
Van valued at approx. PLN 30,000.00.
The Sellers acknowledge that the Buyers enter into this Agreement based on
the assumption of full truth and accuracy of the above statements.
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8. REPRESENTATIONS AND WARRANTIES OF THE BUYERS
The Buyers hereby represent and warrant to the Sellers as follows:
8.1. CEDC has been duly organized and validly exists under the laws of
the State of Delaware and has the power and authority to execute the
transaction contemplated herein;
8.2. Carey Agri has been duly organized and validly exists under the laws
of Poland and has the power and authority to execute the transaction
contemplated herein;
8.3. The execution of this Agreement and the performance of the
obligations set forth herein have been duly authorized by the Buyers
and will not result in violation of any law, decree or regulation,
any contract to which either of the Buyers is a party, or by which it
or its property may be bound, any judgment of any court, or any
permit or approval of any governmental agency;
8.4. This Agreement constitutes a valid and legally binding obligation of
the Buyers, enforceable in accordance with its terms.
9. INDEMNITY
The Sellers shall, for an unlimited period of time assume the liability and
shall indemnify the Company and/or the Buyers for any payment of tax or
debts resulting from any tax control or legal proceedings concerning the
Company's activity before the Closing Date.
10. NON - COMPETITION COVENANT
During three years from the Closing Date, each of the Sellers should not be
involved in any business which competes with that of the Company, or in
particular, participate in competitive partnerships and companies as a
partner, a shareholder or a member of their governing bodies, except for
the Seller's participation in publishing of the trade magazine "Rynki
Alkoholowe". In the case of a breach of this obligation by any of the
Sellers, the employment contracts of this Seller may be terminated with
immediate effect, and this Seller shall pay to the Buyers a contractual
penalty equal to USD 250,000.00 for each case of breach.
11. NOTIFICATIONS
All notices and communications required or permitted under this Agreement
shall be sufficiently given if personally delivered with acknowledgement of
receipt or sent by registered letter or by return telex:
To the Buyers:
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Carey Agri International Poland Sp. z o.o.
ul. Bokserska66A,
02-690 Warszawa,Polska,
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for the attention of William V. Carey.
To the Sellers:
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Jacek Luczak, ul. Krakowska 2, 87-100 Torun, Poland
Slawomir Wisniewski, Kowalki 75, 87-500 Rypin, Poland
or to any other address which may be notified in writing by either party
to the other in the above form.
12. MISCELLANEOUS
12.1. The Buyers and the Sellers agree that any information concerning
this Agreement released to media up to the moment of 3 months
after the Closing Date shall be previously agreed by both parties.
12.2. Any legal, financial and consulting expenses of the Sellers in
relation to the transaction must be borne solely by the Sellers.
The Buyers shall be responsible for their own expenses.
12.3. The cost of the tax on civil law transactions calculated in amount
of 1% of the Price shall be borne by both parties, 50% each.
12.4. This Agreement shall be governed by and construed in accordance
with the laws of the Republic of Poland.
12.5. Any and all disputes arising in connection with this Agreement
shall be settled by the Arbitration Court of the Polish Chamber of
Commerce in accordance with its rules of proceedings. Arbitration
proceedings shall be held in Warsaw and shall be conducted in
Polish.
12.6. This Agreement has been executed in four counterparts in English
and four counterparts in Polish, one counterpart of each language
version for each Party. The Polish language version shall prevail
where there is any difference between the English and Polish
language versions.
Signed by: Central European Distribution Corporation
/s/ William V. Carey
Chairman of the Board, President and Chief Executive Officer
Carey Agri International Sp. z o.o.
/s/ William V. Carey
Chairman of the Management Board
For the Buyers
Signed by: /s/ Jacek Luczak /s/ Slawomir Wisniewski
For the Sellers
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Schedules:
1. Lock-up letters,
2. Employment contracts,
3. Copy of registration certificate of trademark,
4. Lease agreements,
5. Bonus scheme.
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