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: June 21, 1996
BRAZIL FAST FOOD CORP.
(Exact name of Registrant as specified in charter)
Delaware 0-23278 13-3688737
(State or other (Commission File No.) (IRS Employer
jurisdiction of Identification
incorporation) Number)
Praia do Flamengo
200-22o. Andar
CEP 22210-30, Rio de Janeiro, Brazil N/A
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 55 21 285 2424
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Item 5. Other Events.
On June 10, 1996, Registrant acquired all of the
outstanding capital shares (quotas) of, respectively, Bigburger Sao
Paulo Lanchonetes Ltda. and Bigburger Goiania Lanchonetes Ltda.,
each a Brazilian corporation (collectively, the "Acquired
Companies"), from Rucker Holdings Corporation, a non-affiliated
British Virgin Islands corporation ("Rucker"), for (i) $250,000
(paid in Brazilian reais) and (ii) 510,000 shares of Registrant's
Common Stock (the "Shares").
The Acquired Companies own and operate 7 "Mr. Theo"
hamburger fast food restaurants in Sao Paulo and Goiania, Brazil.
Of these 7 retail outlets, 6 have been rebranded and are now
operating under the Registrant's "Bob's" tradename, while the
seventh outlet is scheduled to be rebranded and opened in early
July 1996.
Registrant has agreed to file a registration statement
covering the Shares under the Securities Act of 1933, as amended,
no later than July 8, 1996 and to exert its best efforts thereafter
to cause such registration statement to be declared effective,
thereby enabling Rucker to publicly offer the Shares for public
sale.
Item 7. Financial Statements and Exhibits.
I. Financial Statements of the Acquired Companies.
Not applicable.*
(a) Pro Forma Financial Information.
Not applicable.*
(b) Exhibits.
(i) Agreement to the Assignment and Transfer
of Quotas of Bigburger Sao Paulo Lancho-netes Ltda.
dated June 10, 1996 among Rucker, Theodoro Henrique
da Silva, Registrant and Theodoro Henrique da Silva
Junior.
(ii) Agreement to the Assignment and Transfer
of Quotas of Bigburger Goiania Lancho-netes Ltda.
dated June 10, 1996 among Rucker, Theodoro Henrique
da Silva, Registrant and Theodoro Henrique da Silva
Junior.
* The Acquired Companies, neither individually nor collectively,
constitute a "significant subsidiary" of Registrant, as such
term is defined in Rule 1-02, promulgated under Regulation S-X.
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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.
Dated: June 21, 1996 BRAZIL FAST FOOD CORP.
(Registrant)
By: /s/Ira Roxland
Ira Roxland
Assistant Secretary
EXHIBIT 7(c)(i)
AGREEMENT FOR THE ASSIGNMENT AND TRANSFER OF QUOTAS
This Agreement, executed the dates and places hereunder indicated, by and
between RUCKER HOLDINGS CORPORATION, a company duly organized and validly
existing under the laws of the British Virgin Islands, with registered office
at Omar Hodge Building, Wickham's Cay, Road Town, Tortola, BVI, herein duly
represented by its attorney in fact, Mrs. Isabel Cristina Cioffi da Silva,
Brazilian citizen, resident and domiciled in the city of Sao Paulo, at Av.
Cidade Jardim 400/17th floor, bearer of the I.D. card nr. 14.484.790 SSP/SP,
and registered in CPF under the nr. 164.686.128-02, according to the Power
of Attorney granted in 04.24.96, which is duly notarized and consularized in
the Brazilian Consulate, and translated by a sworn translator, and registered
in the 4th Notary under the nr. 2334260, as of 06.03.96 (hereinafter referred
to as the 1st. ASSIGNOR); TEODORO HENRIQUE DA SILVA, a Brazilian citizen,
resident and domiciled in the city of Sao Paulo, SP, Brazil, at Rua Ribeir o
Branco 333, Vila Oratorio, bearer of the I.D. card nr. SSP/SP 2.499.488, and
registered in CPF under the nr. 608.679.578-91 (hereinafter referred to as
the 2nd ASSIGNOR) (both 1st and 2nd ASSIGNORS, when together, referred to as
the ASSIGNORS); and BRAZIL FAST FOOD CORP, a company duly organized and
validly existing under the laws of the State of Delaware, having its head
office at 15 East North Street, Dover, State of Delaware, United States of
America, and executive head office in Rio de Janeiro, RJ, at Praia do
Flamengo 200/22th. Floor, herein duly represented by its Directors, Mr.
PIETER J. F. van VOORST VADER, Dutch, businessman, resident and domiciled in
the city of Rio de Janeiro, RJ, Brazil, with offices at Praia do Flamengo
200/22th. floor, bearer of the I.D. card nr. RNE W 226066-9, and registered
in CPF under the nr. 960372617-68, and ROGERIO CARLOS LAMIM BRAZ, Portuguese,
businessman, resident and domiciled in the city of Rio de Janeiro, RJ, Brazil,
with offices at Praia do Flamengo 200/22th floor, bearer of the I.D. card nr.
1014437 SRE, and registered in CPF under the nr. 718.510.627-34 (hereinafter
referred to as the ASSIGNEE); and, as INTERVENOR, THEODORO HENRIQUE DA SILVA
JUNIOR, Brazilian citizen, resident and domiciled in the city of Sao Paulo,
SP, Brazil, at Rua Ribeir o Branco nr. 333, Vila Oratorio, bearer of the I.D.
card nr. SSP/SP 14.484.789-9, and registered in CPF under the nr.
164.686.158-28.
I - PREMISES
I.1. The ASSIGNORS are the lawful and sole owners of 398,001 (three
hundred ninety eight thousand and one) quotas, divided into 394,021 (three
hundred ninety four thousand and twenty one) quotas for the 1st. ASSIGNOR and
3,980 (three thousand nine hundred and eighty) quotas for the 2nd. ASSIGNOR,
all of them representing 100% (one hundred percent) of the total paid in
capital of BIGBURGER SAO PAULO LANCHONETES LTDA. (The Quotas), a company duly
organized and validly existing under the laws of the Federative Republic of
Brazil, with its head office at Rua Ponta Delgada nr. 85, Vila Olimpia, Sao
Paulo, SP, Brazil, enrolled in the Brazilian General Taxpayers Registry (CGC)
under the nr. 74.571.274/0001-77 (the Company);
I.2. The 1st. ASSIGNOR has acquired the Quotas from the Company's
controllers in May 7th, 1996, but it is not willing and have no experience in
running a company in Brazil;
I.3. The ASSIGNEE is a public North-American company, being the
controller of a company, in Brazil, which is the second biggest chain of fast-
food in that country;
I.4. The ASSIGNEE is interested in expanding its operation in Brazil,
through the acquisition from the ASSIGNORS of all of the Quotas, provided all
the rules established in the Company's by-laws are duly observed, according
to the price and conditions herein set forth;
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I.5. The ASSIGNORS are deeply interested in selling all of the Quotas to
the ASSIGNEE, according to the provisions herein agreed and established;
IT HAS NOW BEEN AGREED THE FOLLOWING, ACCORDING TO THE PREMISES ABOVE EXPOSED:
1. THE OBJECTS
1.1 The objects of this Contract are:
a) The assignment and transfer, by the ASSIGNORS, and the respective
acquisition, by the ASSIGNEE, of the Quotas, which are free of any liens and
encumbrances, liabilities or any other obligations, including whatever rights
there may exist, relative to the Quotas, and not expressly mentioned hereby;
and
b) The full commitment of the ASSIGNORS and the INTERVENOR, to hold
harmless the ASSIGNEE regarding any debt, superveniences, misrepresentation
or breach regarding the Company or the previous management, and related to
any act or fact practiced by the ASSIGNORS and/or the INTERVENOR, in the
position of the Company's administrators, carried out in the Company
previously to this date.
2. THE ASSIGNMENT, THE TRANSFER AND THE ACQUISITION
In such way as they legally own the Quotas, without any opposition and/or
onus, and in accordance to their respective participation in the Company, the
ASSIGNORS assign and transfer the totality of their Quotas to the ASSIGNEE,
which acquire them, by the total and fixed price of US$ 2,150,000.00 (two
million one hundred and fifty thousand American dollars), to be paid as
follows:
US$ 1,720,000.00 (one million seven hundred and twenty thousand
American dollars) is fully paid in this date, at sight, through the
deliverance of 344,000 (three hundred and forty four thousand) shares of
common stock issued by the ASSIGNEE (the Shares), according to the following
percentage: (i) 340,560 (three hundred and forty thousand five hundred and
sixty) shares of common stock to the 1st. ASSIGNOR; and (ii) 3,440 (three
thousand four hundred and forty) shares of common stock to the 2nd. ASSIGNOR,
reason why the ASSIGNORS give to the ASSIGNEE the fully, irrevocable and
irreparable acquittance, concerning the payment of this parcel of the Price.
b) US$ 430,000.00 (four hundred thirty thousand American dollars)
through the deliverance of 86,000 (eighty six thousand) shares of common
stock issued by the ASSIGNEE (the Shares) to the ASSIGNORS, being 85,140
(eighty five thousand one hundred and forty) shares of common stock for the
1st. ASSIGNOR and 860 (eight hundred and sixty) shares of common stock for
the 2nd. ASSIGNOR. The ASSIGNORS return, in this act, the Certificates
related to this portion of the Price, to the ASSIGNEE, as a pledge for the
guarantee to the warranties and representation referred to in clause 6.1., as
well as the declaration stated by the ASSIGNORS, who agree to have this
parcel of the Price pledged to the ASSIGNEE as the guarantee above mentioned.
The Pledge shall include any and all dividends, bonus, splits and any
advantage related to the Shares herein pledged, and shall be for a term of 1
(one) year, after which, in accordance to subclause b.1. hereunder, the
ASSIGNEE shall have the Certificates returned to any of the ASSIGNORS,
according to previous instructions, received in writing, or to any third
party, indicated by any of the ASSIGNORS, in writing. Messrs. Pieter J. F.
van Voorst Vader and Rogerio Carlos Lamim Braz (the Bailees) are made
depositories of the 86,000.00 (eighty six thousand) shares mentioned in the
present item and shall return them to the ASSIGNORS, in hands of the 2nd
<PAGE>
ASSIGNOR, or any third party appointed by him, in writing, provided all the
conditions hereunder expressed in item b.1 below are totally met, under
penalty of prison as determined by the Brazilian Law. The deliverance of the
Shares to the 2nd ASSIGNOR, or to any third party appointed by him, shall
be evidenced by a discharge and release document, to be executed by the
ASSIGNORS in favor of the Bailees, releasing both Bailees from their
obligation, as set forth herein. Such document may be executed either by the
1st or the 2nd ASSIGNOR, separately, being understood that the signature of
any of the ASSIGNORS shall be enough and legally satisfactory to discharge
the Bailees from their commitment, as herein undertaken.
b.1) It is clearly understood that once the period of 1 (one) year,
above agreed by the parties in letter "b", have reached its final
term, and in the case there has notbeen and does not exist any
breach by the any of the ASSIGNORS, either related to the
representation or to any obligation herein undertaken by the
ASSIGNORS, or debts of any kind related to the previous
management, carried out in the Company before this date, the
Bailees shall immediately deliver to the 2nd ASSIGNOR, or to any
third party, as indicated by him, in writing, the balance of the
respective Certificates, evidencing the transfer of the shares as
described in the precedent letter "b". Nevertheless, it is also
understood and agreed that the period of time of 1 (one) year,
above mentioned, is not related and does not intend to refer to
any of the prescription terms hereunder established, or
determined by the law, but only to guarantee the ASSIGNEE for a
short period of time. The ASSIGNORS shall remain, jointly and
severally, as personal guarantors of all the obligation and
duties during all the terms foreseen in the respective laws and
local legislation, regarding the Company.
b.2) The ASSIGNORS herein declare and represent that they are acquiring
the Shares from the ASSIGNEE for investment and not with a view to
their public distribution.
b.3) In order to satisfy the U.S. Securities Act of 1933, the Shares
shall have placed with a legend, as follows: "The shares
represented by this certificate have not been registered under the
Securities Act of 1933. The shares have been acquired for
investment and may not be sold, transferred or assigned in the
absence of an effective registration statement for these shares
under the Securities Act of 1933 or an opinion of the company's
counsel that registration is not required under said Act."
b.4) The ASSIGNEE undertakes to have the Shares related to letters "a"
and "b" above included in a registration statement to be filed by
the ASSIGNEE with the US Securities and Exchange Commission (the
SEC) under the Securities Act of 1933 no later than 20 (twenty)
business days, as from the execution of this Agreement, and
following such registration to exert ASSIGNEE's best efforts to
cause the SEC to declare such registration statement effective at
the earliest possible time.
2.2. The ASSIGNORS hereby undertake and declare themselves jointly and severally
fully committed to give full, irrevocable and irreparable acquittance,
concerning the payment of any of the parcels of the Price, when done,
and to declare not to have anything else to charge, receive, complain or
demand to or against the ASSIGNEE, at any title, under any reason,
regarding the portion of the Price already paid. The ASSIGNORS grant to
each other reciprocal powers to receive any parcel of the Price and to
give the respective acquittance, being understood that the acquittance
given by any of the ASSIGNORS shall to oblige both ASSIGNORS before the
ASSIGNEE.
2.3 The parties execute, in this date, the amendment to the Articles of
Incorporation of the Company, transferring and assigning all of the
Quotas to the Assignee. Such amendment shall be immediately filed
before the Board of Trade of the respective State.
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2.3. The ASSIGNORS acknowledge that any verification of capital gain, and the
payment of any eventual income tax, are under their sole responsibility.
3. THE ASSIGNORS' REPRESENTATIONS
3.1. The ASSIGNORS represent and warrant to the ASSIGNEE, under the law
penalties, that:
I. The 1st. ASSIGNOR is a private company, duly organized and validly
existing under the laws of the British Virgin Islands having all its
acts and registers duly filed, as well as all the authorization
necessary to the assignment and transfer of the Quotas, as well as the
due approval of its Board of Directors;
II. The Company is a limited liability company, duly organized and validly
existing under the laws of the Federative Republic of Brazil, in normal
function, with all legal documents duly filed before the respective
authorities, whose Articles of Incorporation are duly filed before the
Board of Trade of the State of Sao Paulo, and registered under the nr.
35.212.161.562, as of 08.31.81, and its last amendment to the articles
of incorporation, dated of 05.07.96, is registered in the same Board of
Trade under the nr.71.972/96-1, as of 05.17.96. The total paid in
capital, in June 5th, 1996, is R$398,001.00 (three hundred ninety eight
thousand and one reais), divided into 398,001 (three hundred ninety
eight thousand and one) quotas, each one with an individual face value
of de R$ 1,00 (one real);
III. The ASSIGNORS, each representing related to their respective
participation in the Company, are the true, lawful and sole owners of
the Quotas, which are totally free of any liens and encumbrances,
liabilities or any other obligations, and the ASSIGNORS have the total
free disposal of such Quotas;
IV. There is no restriction which may prevent the assignment and transfer,
by the ASSIGNORS, of the Quotas, nor which may restraint the ASSIGNORS'
right of disposing of such Quotas, herein assigned to the ASSIGNEE,
being understood that this Contract does not harm or collide with any
other statutory disposition of the 1st. ASSIGNOR, or any agreement
executed by any of the ASSIGNORS with third parties;
V. There is no other document or Quotaholders Agreement, which may
restraint the free circulation of the Quotas, as well and the ASSIGNORS
do not have any debt to the Company or any credit against the Company;
VI. The ASSIGNORS do not have any claim against the Company, nor any right
to demand, plead or litigate concerning its participation in the
Company, being understood that, in the case any such right or expectancy
of right and/or credit arises from any unknown or undisclosed information,
such right or expectancy of right and/or credit is herein assigned to the
ASSIGNEE, as a part of this Agreement;
VII. In this date, there is no deliberation and/or commitment which may
implicate in the issuance, by the Company, of new Quotas, or the
configuration of any option for future Quotas subscription, either in
benefit of the any of the ASSIGNORS, or in benefit of third parties;
VIII.All the Company's administrators who represent the ASSIGNORS' interest
in it resign, collectively, in this act, giving to the Company the
ASSIGNEE the fully, irrevocable and irrepealable acquitance, concerning
the period the administrators acted in the Company, declaring not to
have anything to receive, complain or request from the Company, under
any title or reason;
<PAGE>
IX. All powers of attorney granted by the ASSIGNORS are revoked as of this
date;
X. Both the ASSIGNORS give to the Company full acquittance for the period
of time the ASSIGNORS participated in it as quotaholders, declaring,
also, that they have always voted in favor of the Company's interests,
whenever they have been convoked to do it;
XI. The 1st. ASSIGNOR is in good standing, and there is no legal procedures
or fact which may put in danger or weaken its financial health and/or
its commercial credibility, or even which may cause any harm or damage
to this transaction;
XII. There is no legal procedures or fact which may put in danger or weaken
the 2nd ASSIGNOR's financial health and/or commercial credibility, or
even which may cause any harm or damage to this transaction;
XIII.All of the verification and declaration are based on the Balance Sheet
of the Company, prepared in Dec. 31st, 1995, as well as in the Balance
as of April 30th, 1996, which become part of this Contract, as Exhibits
1 and Exhibit 2;
XIV. The Company's Balance Sheet prepared in Dec. 31st, 1995 does present
the financial situation of the Company in that date, and has been
prepared according to the Brazilian GAAP;
XV. There has not been, between the date of the Balance prepared in 04.30.96
and the present date, any substantial alteration in the Company's
business or activities;
XVI. All of the Company's social documents and fiscal book are regularly
opened and duly accounted, according to the legal requirements;
XVII.All of the assets and rights which belong to the Company do physically
exist, having been suitable amortized or depreciated, if the case, or
there has been constituted the due provision, necessary to face any
eventual loss in the liquidation of credits, being, therefore, converted
in cash by its accounted value, except for the provision stated in
clause 3.2;
XVIII.All of the assets physically located in the Company's stores belong to
the Company, except for any eventual free loan for use (comodato) of
any equipment belonging to third parties, and all of them are duly
accounted and fully paid, not existing any dispute of any nature
related to such assets, except for the provision of clause 3.2.;
XIX. All of the assets and rights which belong to the Company are free from
any liens or encumbrances;
XX. The ASSIGNORS do not know about the existence of any due taxes,
contributions, charges or any other duty for which the Company has not
created a suitable provision;
XXI. The Company has materially observed and accomplished with all of the
laws and rules applicable to the running of its business;
XXII. The Company has, in this date, 85 (eighty five) employees, under the
FGTS regime;
XXIII. All of the social, commercial, fiscal and labor obligation of the
Company are updated and not in delay, and there is not any suits,
execution and/or labor proceedings against the Company, administrative
and/or judicial procedures, in any court or jurisdiction, except for
those related in Exhibit 3;
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XXIV. There is no legal or contractual impediment or obstruction for the
regular functioning of the Company, including all of the rules related
to urban occupation and environmental protection. Also, all the
stores operated by the Company have all the licenses and documents
required for their regular operation, except for the relation attached
to this Agreement as Exhibit 4;
XXV. The Company is not surety and/or guarantor of any person or company;
XXVI. All of the revenues, wages, additional of any kind, payment for
overtime, deposits in FGTS and indemnification have been paid in time;
XXVII. There is no Federal, State or Municipal examination in course in any
of the stores of the Company, or in the Company itself, and the
ASSIGNORS do not know about any legal suit which is to be proposed
against the Company;
XXVIII.There is no infraction record or penalty applied to the Company,
related to any of the Company's stores, except for those related in
Exhibit 5;
XXVIX. All of the necessary authorization for the regular function of the
stores were obtained in time, except for the ones related in Exhibit 4
as above mentioned.
XXX. All of the taxes, contributions and charges related to the stores
operated by the Company were paid in time, except for those related in
Exhibit 6 ;
XXXI. All of the values and amounts related to rental or lease agreements,
concerning the real state used by the stores which are operated by the
Company, including the charges and taxes, have been paid in time, and,
therefore, there is no debt concerning these values or amounts;
XXXII. They are acquiring the Shares from the ASSIGNEE for investment and not
with a view to their public distribution, except (i) pursuant to a
current registration statement under the U.S. Securities Act of 1933,
as amended, covering the Shares; or (ii) pursuant to an available
exemption from registration under such Act;
XXXIII.There is no agreement or contract, either written, oral or tacit,
executed between the Company and any other soft drink company than the
ones which supplies Coca-Cola to the Company.
3.2. The parties declare their knowledge to the fact that concerning the
representations which are direct or indirect related to the Company's
Balances of Dec. 31st, 1995 and April 30th, 1996, there may be an
inexactness with reference to the accounting of the physical situation
and value of the assets belonging to the Company, which, however,
exist in fact and under the law.
4. THE ASSIGNEE'S REPRESENTATIONS
4.1. The ASSIGNEE represents and warrants to the ASSIGNORS, under the law
penalties, that:
I. it has all the corporate authorizations necessary to carry on with
this Contract and to issue the Shares to the ASSIGNORS, which does not
harm or collide any statutory or corporate disposition, nor any
agreement, executed with third parties;
II. it is totally economical and financial capable to contract all the
obligations herein established, as well as to have them accomplished,
in time.
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5 - THE AMENDMENT TO THE ARTICLES OF INCORPORATION
5.1 The parties execute, together with this Contract, an amendment to the
Articles of Incorporation of the Company, through which the ASSIGNORS
assigns and transfer 99.9% (ninety nine point nine percent) of the
Quotas to the ASSIGNEE, and 0.1% (zero point one percent) to any third
party appointed by the ASSIGNEE, according to the provisions of the
law.
5.2. The Amendment to the Articles of Incorporation of the Company shall be
filed before the Board of Trade of the State of Sao Paulo.
5.3. The ASSIGNORS agree to execute, at first request and in due time, any
and all additional documents which may be necessary for the assignment
and transfer of the Quotas to the ASSIGNEE, according to this Contract.
6. INDEMNIFICATION
6.1. The ASSIGNORS and the INTERVENOR declare themselves severally and
jointly responsible for all the representations expressed in this
Contract, as well as for all the acts and facts practiced by the
ASSIGNORS and/or the INTERVENOR, occurred up to this date, undertaking,
furthermore, as GUARANTORS, to hold harmless and to indemnify the
ASSIGNEE for all the losses or payments the ASSIGNEE may suffer or be
compelled to do, or due to any debt or responsibility related to any
fact or act that the ASSIGNORS or the INTERVENOR may have practiced,
neglected or omitted, or even due to a consequence of any inexactness
verified or, also, due to any obligation previously undertaken by the
Company, or any superveniences, everything either reflected or not in
the accountancy of the Company, including any under evaluated
liabilities, being understood that all the responsibilities herein
undertaken by the ASSIGNORS and the INTERVENOR regards only to the acts
practiced by them in the period precedent to the date of the execution
of this Agreement, and also that:
6.1.1. The obligation of indemnification, herein undertaken by the ASSIGNORS
and the INTERVENOR, according to clause 6.1. above, shall last for a
period of 5 (five) years, regarding the taxes and labor issues and
proceedings, and for legal prescription terms all other obligation,
all of them as from this date. The rule herein established in this
subclause 6.1.1. includes all of the legal proceedings already in
course, as listed in Exhibit 3.
6.1.2. Any amount due according to clause 6.1. shall be informed to the any
of the ASSIGNORS or to the INTERVENOR, at the ASSIGNEE's choice, by
means of fax transmittal, with confirmation of transmission, or a
simple letter, with confirmation of reception, and shall be paid, by
the ASSIGNORS or the INTERVENOR, within the unsurpassable term of 7
(seven) days, as from the reception of the notification above
mentioned. In the case of delay, by the ASSIGNORS or the INTERVENOR,
of the payment herein established, it shall be added 10% (ten percent),
as compensatory fine, to the amount due by the ASSIGNORS and the
INTERVENOR, plus interests at a rate of 1% (one percent) per month.
6.1.3. In the case any governmental authority or third parties initiate any
administrative or judicial proceeding against the Company, or decide
to collect any amount or to demand any right against the Company,
risen due to any act, fact or omission occurred during the management
carried out in the Company, either by the ASSIGNORS or by the
INTERVENOR, the ASSIGNEE shall notify one of the ASSIGNORS or the
INTERVENOR, at its choice, by means of a fax, with the confirmation of
transmission, or or simple letter, with confirmation of reception,
within suitable time, in order to allow the ASSIGNORS or the
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INTERVENOR to follow closely such events, as well as the verification
of the respective responsibilities, and also to take the necessary
steps they may understand, including for the purpose of appointing a
counsel for such attendance, in order to have their rights and
interests protected, due to their obligation in indemnifying the
ASSIGNEE, as established in clause 6.1. and according to the rules of
subclauses 6.1.3.1., 6.1.3.2. and 6.1.3.3. In the case the ASSIGNEE
does not obey to the rules herein determined, related to its
obligation in notifying one of the ASSIGNORS or the INTERVENOR
regarding any administrative and/or judicial proceeding, according to
this subclause 6.1.3, then the ASSIGNORS and the INTERVENOR shall not
be obliged to face the obligation of indemnifying the ASSIGNEE,
concerning the amounts related to such proceedings.
6.1.3.1. The ASSIGNORS and/or the INTERVENOR may take upon the
responsibility regarding the Company's interests, at their own and
sole expenses, in the case of any proceedings against the Company,
regarding this clause 6 and its subclauses, up to the final
solution of the dispute, being understood that the ASSIGNORS and
the INTERVENOR are full responsible to offer all the guarantees it
may be requested to protect the Company's interests and to allow
its defense, either in the administrative or in the judicial
fields.
6.1.3.2. In the event the ASSIGNORS and/or the INTERVENOR decide to take
upon the responsibility of defending the Company up to the final
solution of the dispute, the ASSIGNEE shall permit their access to
all the books and documents, necessary to the elaboration of the
defense of the case. In such case, the ASSIGNEE shall have the
right to demand from the ASSIGNORS and/or the INTERVENOR to
guarantee, jointly and severally, the timely payment of the debt,
if and when necessary, according to the law, as a condition to
suspend, up to the final decision of the respective legal
proceeding, the joint and several responsibility of the ASSIGNORS
and/or the INTERVENOR, as established in clause 6. In that
hypothesis, there will be no compensation, as determined in such
clause 6.2 below.
6.1.3.3. The ASSIGNORS and/or the INTERVENOR shall notify the ASSIGNEE, , by
means of fax transmittal, with confirmation of transmission, or
simple letter, with confirmation of reception, about their decision
in taking upon the defense of the proceedings mentioned in clause
6.1.3.2. above, within the term of 72 (seventy two) hours, as from
the reception of the notification herein above mentioned in
subclause 6.1.3, excluding Saturdays, Sundays and holidays,
provided such excluded days are not part of the legal term granted
to the Company to present its defense. The absence, by the
ASSIGNORS and/or the INTERVENOR, in answering such notification,
shall be interpreted as their abdication in exercising such right.
6.2. The parties agree that the ASSIGNEE is duly authorized to proceed
to the compensation of all and any payment it may be compelled to
make, due to the existence of any debt, including, but not
limiting, to taxes, contribution, charges, social, commercial,
fiscal, corporate or labor obligations, which are or should be
under the ASSIGNORS and/or the INTERVENOR responsibility, by means
of not delivering the balance of the Shares, given by the ASSIGNORS
to the ASSIGNEE, as a Pledge, according to this Contract. In such
case, the ASSIGNEE may proceed with the execution of the guarantee,
including any and all dividends, bonus, splits or advantages
related to the Shares, without any notice to the ASSIGNORS, within
the conditions of this Contract. If the deduction is not enough to
cover the undue payment made by the ASSIGNEE, then the ASSIGNORS
<PAGE>
and/or the INTERVENOR shall pay to the ASSIGNEE the remaining
difference. Such compensation will only take place in case the
ASSIGNORS and/or the INTERVENOR do not comply with their indemnity
obligation in the terms provided for in this clause 6.
7 - THE ABDICATION TO THE MANDATES AND THE REVOCATION OF THE
POWERS OF ATTORNEY
7.1. The ASSIGNORS hereby declare that all the Company's administrators
renounce to their mandates.
7.2. The ASSIGNORS present, in this act, the revocation of all the powers of
attorney granted to third parties by the Company, as Exhibit 7.
8 - NON COMPETITION
8.1 The ASSIGNORS and the INTERVENOR undertake not to act in Brazil, either
by themselves, or through third parties, individually, personally or by
means of incorporation of any company or participation in the capital
of any company, at any title, for any reason, for term of 5 (five)
years, as from the execution of this Contract, in any business related
to the trade concerning the hamburger fast-food system. Such
prohibition does not include the participation, by the ASSIGNORS and/or
the INTERVENOR, in the capital of the ASSIGNEE.
8.1.1 The inobservance by the ASSIGNORS and/or the INTERVENOR regarding the
commitment above undertaken, shall cause to the breach party,
individually, to pay a compensatory fine, equivalent to US$ 1,000,000.00
(one million American dollars), to be collected through executive
procedure, according to the applicable law.
8.1.2. The breach by the ASSIGNORS and/or the INTERVENOR, related to clause 8
above, may be proved through a simple evidence, by any means, of the
performance of the ASSIGNORS and/or the INTERVENOR, personally or
through third parties, in the hamburger fast food system.
8.1.3. The parties hereby acknowledge and accept that the pecuniary fine
above agreed shall not constitute a sufficient reparation to the
infringement, by the ASSIGNORS and/or the INTERVENOR, third parties or
companies incorporated by them or in which any of them participates,
of the rule established in this clause 8 and its subclauses.
Therefore, and independently of the right of the ASSIGNEE to make use
of all the resources available to guard and defend its rights, it is
herein agreed that the ASSIGNEE may demand, in such case, to be
indemnified by all losses, damages and/or ceasing profits derived from
the inobservance, by the ASSIGNORS and/or the INTERVENOR, related to
this clause 8, to be verified in a specific proceeding, and paid
independently of the fine to which they are submitted to, according to
subclause 8.1.1.
9 - THE NOTICES
9.1 Any notice to be given, regarding this Contract, shall be considered
as effective if delivered by fax or letter, in any case with
confirmation of reception and copy, from the ASSIGNORS to the ASSIGNEE,
and from the ASSIGNEE to any of the ASSIGNORS or to the INTERVENOR,
obliging all of them, in the following addresses:
<PAGE>
ASSIGNORS: Rucker Holdings Corporation
Omar Hodge Building, Wickham's Cay,
Road Town, Tortola, BVI
Att: Rosa Restrepo
Tel.: (1 809) 494-4977
Fax: (1 809) 494-4980
Teodoro Henrique da Silva
Rua Ribeir o Branco 333, Vila Oratoria
Sao Paulo, SP - Brazil
Tel.: (5511) 820-0828
Fax: (5511) 820-3763
INTERVENOR: Teodoro Henrique da Silva Jr.
Rua Ribeir o Branco 333, Vila Oratoria
Sao Paulo, SP - Brazil
Tel.: (5511) 820-0828
Fax: (5511) 820-3763
ASSIGNEE: Brazil Fast Food Corp
Praia do Flamengo 200/22th floor
Flamengo - Rio de Janeiro - RJ - Brazil
Att.: Mr. Pieter J. F. van Voorst Vader or Mr. Rogerio
C. L. Braz
Tel: (5521) 285-2424
Fax: (5521) 205-5768
10 - GENERAL DISPOSITIONS
10.1. The nullity or invalidity of any of the clauses herein agreed shall
not cause any harm to the validity and enforceability of all of the
other dispositions, which shall be strictly observed and accomplish by
the parties. The parties herein undertake to endeavor their best
efforts to have all the dispositions duly valid and enforceable, with
the same effects and purposes of the ones which were considered either
null or void.
10.2. This Contract and its Exhibits reflect the whole operation as it has
been agreed by the parties, and constitute an integral agreement
between them, relating to all the information herein expressed,
superseding, therefore, any and all previous agreements or
negotiation, either oral or written, with reference to the object of
this Contract.
10.3. This Contract represents the parties' will, and there is no other
commitment which may not be herein foreseen, being understood that
this Contract can only be changed or amended in writing, by the
parties' mutual agreement.
10.4. This Contract is made in both Portuguese and English languages, being
understood that, in case of any doubt, the Portuguese version shall
prevail.
10.5. This Contract and the rights and obligations herein established are
irrevocable, and shall be binding upon and shall inure to the benefit
of the respective administrators, successors and assigns of the
Parties hereto
10.6 This Agreement and obligations herein established shall be construed
under the laws of the Federative Republic of Brazil, as well as the
legal relations between the Parties. The Court of the city of Rio de
Janeiro, RJ, Brazil will have jurisdiction.
<PAGE>
10.7. Each party shall be responsible for all the costs related to the
respective counsels and/or professionals hired for the execution of
the documents and verification necessary to the implementation of this
Contract and its purposes.
10.8. The Company is present to this act and, through its legal
representative, declares not to have any objection to this operation,
nor to be acquainted to any act which could impede or obstruct the
determinations and rules herein agreed.
10.9 The INTERVENOR declares to know and to agree to all the dispositions
herein expressed, undertaking to observe and accomplish with all of
them, specially the ones related to clauses 6 and 8, and their
subclauses.
10.10 The following Exhibits are to be considered as part of this Contract,
for all the purposes and effects herein agreed:
Exhibit 1 - Balance Sheet prepared in Dec. 31st, 1995
Exhibit 2 - Balance Sheet as of April 30th, 1996
Exhibit 3 - Relation of all of the suits, execution and/or labor
proceedings against the Company, administrative and/or
judicial procedures, in any court or jurisdiction
Exhibit 4 - Relation of the missing documents and/or licenses, related
to the regular function of the stores of the Company
Exhibit 5 - Relation of all the infraction records or penalties applied
to the Company, related to any of the Company's stores
Exhibit 6 - Relation of all taxes, contributions and charges, related
to the stores, which were not paid in time
Exhibit 7 - The revocation of all the powers of attorney granted to
third parties by the Company.
<PAGE>
(Continuation of the AGREEMENT FOR THE ASSIGNMENT AND TRANSFER OF QUOTAS,
executed between Rucker Holdings Corporation, Mr. Teodoro Hemrique da Silva,
Mr. Teodoro Henrique da Silva Jr. and Brazil Fast Food Corp)
IN WITNESS WHEREOF, the Parties have executed this Contract in the places and
dates hereunder mentioned, in 3 (three) original counterparts, for the same
effect, in the presence of two (2) witnesses.
ASSIGNORS: RUCKER HOLDINGS CORPORATION
________________________________________________
By: Isabel Cristina Cioffi da Silva
Title: Attorney in Fact
Executed in (place):
Date:
Witnesses:
1. _______________________________________________
Name:
I.D.:
2. ________________________________________________
Name:
I.D.:
__________________________________________________
Teodoro Henrique da Silva
Executed in (place):
Date:
Witnesses:
1. _______________________________________________
Name:
I.D.:
2. ________________________________________________
Name:
I.D.:
ASSIGNEE: BRAZIL FAST FOOD CORP.
__________________________________________________
By: Pieter J. F. van Voorst Vader / Rogerio Carlos Lamin Braz
Executed in (place):
Date:
Witnesses:
1. _______________________________________________
Name:
I.D.:
2. ________________________________________________
Name:
I.D.:
<PAGE>
(Continuation of the AGREEMENT FOR THE ASSIGNMENT AND TRANSFER OF QUOTAS,
executed between Rucker Holdings Corporation, Mr. Teodoro Hemrique da Silva,
Mr. Teodoro Henrique da Silva Jr. and Brazil Fast Food Corp)
INTERVENOR: __________________________________________________
Teodoro Henrique da Silva Jr.
Executed in (place):
Date:
Witnesses:
1. _______________________________________________
Name:
I.D.:
2. _______________________________________________
Name:
I.D.:
2nd INTERVENOR: BIGBURGER SAO PAULO LANCHONETES LTDA.
________________________________________________
By:
Title:
Executed in (place):
Date:
Witnesses:
1. _______________________________________________
Name:
I.D.:
2. ________________________________________________
Name:
I.D.:
EXHIBIT 7(c)(ii)
AGREEMENT FOR THE ASSIGNMENT AND TRANSFER OF QUOTAS
This Agreement, executed the dates and places hereunder indicated, by and
between RUCKER HOLDINGS CORPORATION, a company duly organized and validly
existing under the laws of the British Virgin Islands, with registered office
at Omar Hodge Building, Wickham's Cay, Road Town, Tortola, BVI, herein duly
represented by its attorney in fact, Mrs. Isabel Cristina Cioffi da Silva,
Brazilian citizen, resident e domiciled in the city of Sao Paulo, at Av.
Cidade Jardim 400/17th floor, bearer of the I.D. cart nr. 14.484.790, and
registered in CPF under the nr. 164.686.128-02, according to the Power of
Attorney granted in 04.24.96, which is duly notarized and consularized in the
Brazilian Consulate, and translated by a sworn translator, and registered in
the 4th Notary under the nr. 2334260, as of 06.03.96 (hereinafter referred to
as the 1st. ASSIGNOR); TEODORO HENRIQUE DA SILVA, a Brazilian citizen,
resident and domiciled in the city of Sao Paulo, SP, Brazil, at Rua Ribeirao
Branco 333, Vila Oratorio, bearer of the I.D. card nr. SSP/SP 2.499.488, and
registered in CPF under the nr. 608.679.578-91 (hereinafter referred to as
the 2nd. ASSIGNOR) (both 1st and 2nd. ASSIGNORS, when together, referred to
as the ASSIGNORS); and BRAZIL FAST FOOD CORP, a company duly organized and
validly existing under the laws of the State of Delaware, having its head
office at 15 East North Street, Dover, State of Delaware, United States of
America, and executive head office in Rio de Janeiro, RJ, at Praia do
Flamengo 200/22th. Floor, herein duly represented by its Directors, Mr.
PIETER J. F. van VOORST VADER, Dutch, businessman, resident and domiciled in
the city of Rio de Janeiro, RJ, Brazil, with offices at Praia do Flamengo
200/22th. floor, bearer of the I.D. card nr. RNE W 226066-9, and registered
in CPF under the nr. 960372617-68, and ROGERIO CARLOS LAMIM BRAZ,
Portuguese, businessman, resident and domiciled in the city of Rio de
Janeiro, RJ, Brazil, with offices at Praia do Flamengo 200/22th. floor,
bearer of the I.D. card nr. 1014437 SRE, and registered in CPF under the nr.
718.510.627-34 (hereinafter referred to as the ASSIGNEE); and, as INTERVENOR,
THEODORO HENRIQUE DA SILVA JUNIOR, Brazilian citizen, resident and domiciled
in the city of Sao Paulo, SP, Brazil, at Rua Ribeirao Branco nr. 333, Vila
Oratorio, bearer of the I.D. card nr. SSP/SP 14.484.789-9, and registered in
CPF under the nr. 164.686.158-28.
I - PREMISES
I.1. The ASSIGNORS are the lawful and sole owners of 100,000 (one hundred
thousand) quotas, divided into 99,001 (ninety nine thousand and one)
quotas for the 1st. ASSIGNOR and 999 (nine hundred ninety nine) quotas
for the 2nd. ASSIGNOR, all of them representing 100% (one hundred
percent) of the total paid in capital of BIGBURGER GOIANIA LANCHONETES
LTDA.., a company duly organized and validly existing under the laws of
the Federative Republic of Brazil, with its head office in the city of
Goiania, GO, at Av. Dep. Jamel Cecilio nr. 3.300, Flamboyant Shopping
Center, sector Jardim Goias, stores T-15, T-17, T-23 and T-29, at the
Third Pavement Plaza Square, enrolled in the Brazilian General
Taxpayers Registry (CGC) under the nr. 02.693.331/0001-80 (the
Company);
I.2. The 1st. ASSIGNOR has acquired the Quotas from the Company's controllers
in May 9th, 1996, 1996, but it is not willing and have no experience
in running a company in Brazil;
I.3. The ASSIGNEE is a public North-American company, being the controller
of a company, in Brazil, which is the second biggest chain of fast-food
in that country;
I.4. The ASSIGNEE is interested in expanding its operation in Brazil,
through the acquisition from the ASSIGNORS of all of the Quotas,
provided all the rules established in the Company's by-laws are duly
observed, according to the price and conditions herein set forth;
<PAGE>
I.5. The ASSIGNORS are deeply interested in selling all of the Quotas to the
ASSIGNEE, according to the provisions herein agreed and established;
IT HAS NOW BEEN AGREED THE FOLLOWING, ACCORDING TO THE PREMISES ABOVE EXPOSED:
1. THE OBJECTS
1.1 The objects of this Contract are:
a) The assignment and transfer, by the ASSIGNORS, and the respective
acquisition, by the ASSIGNEE, of the Quotas, which are free of any
liens and encumbrances, liabilities or any other obligations, including
whatever rights there may exist, relative to the Quotas, and not
expressly mentioned hereby; and
b) The full commitment of the ASSIGNORS and the INTERVENOR, to hold
harmless the ASSIGNEE regarding any debt, superveniences,
misrepresentation or breach regarding the Company or the previous
management, carried out in the Company, and related to any act or fact
practiced by the ASSIGNORS and/or the INTERVENOR, in the position of the
Company's administrators, previously to this date.
2. THE ASSIGNMENT, THE TRANSFER AND THE ACQUISITION
2.1 In such way as they legally own the Quotas, without any opposition and/
or onus, and in accordance to their respective participation in the
Company, the ASSIGNORS assign and transfer the totality of their Quotas
to the ASSIGNEE, which acquire them, by the total and fixed price of
US$ 520,000.00 (five hundred and twenty thousand American dollars), to
be paid as follows:
a) US$ 120,000.00 (one hundred and twenty thousand American dollars), is
fully paid in this date, at sight, in Brazilian currency (Reais),
equivalent to R$ ---, according to the commercial exchange rate,
informed by the Central Bank of Brazil, in ---. According to the
instructions given by the 1st ASSIGNOR, and accepted by the 2nd
ASSIGNOR, this parcel of the Price is fully paid in this date, at
sight, through a bank transfer, to the account nr. 0721042006-2, of
the Banco Sudameris do Brasil, Branch 0713, belonging to the 2nd
ASSIGNOR, reason why both ASSIGNORS give to the ASSIGNREE the fully,
irrevocable and irrepealable acquitance, concerning such payment of
such parcel of the Price.
b) US$ 400,000.00 (four hundred thousand American dollars) through the
deliverance of 80,000 (eighty thousand) shares of common stock issued
by the ASSIGNEE (the Shares), to be delivered to the 1st ASSIGNOR,
with the acceptance of the 2nd ASSIGNOR, and according to the
following stipulations:
b.1) 62.50% (sixty two point five zero percent), equivalent to US$
250,000.00 (two hundred fifty thousand American dollars), at
sight, through the deliverance of 50,000 (fifty thousand)
Shares to the 1st ASSIGNOR, in this act, with the acceptance of
the 2nd ASSIGNOR, reason why both ASSIGNORS give to the
ASSIGNEE the fully, irrevocable and irrepealable acquitance,
concerning such payment of such parcel of the Price.
b.2) 37.50% (thirty seven point five zero percent) of the parcel
referred to in letter "b" above, equivalent to US$ 150,000.00
(one hundred fifty thousand American dollars), through the
deliverance of 30,000 (thirty thousand) Shares to the 1st
<PAGE>
ASSIGNOR, with the acceptance of the 2nd ASSIGNOR. The 1st
ASSIGNOR returns, in this act, the Certificates related to this
portion of the Price, to the ASSIGNEE, as a pledge for the
guarantee to the warranties and representation referred to in
clause 6.1., as well as the declaration stated by the ASSIGNORS,
who agree to have this parcel of the Price pledged to the
ASSIGNEE as the guarantee above mentioned. The Pledge shall
include any and all dividends, bonus, splits and any advantage
related to the Shares herein pledged, and shall be for a term of
1 (one) year, after which, in accordance to subclause c
hereunder, the ASSIGNEE shall have the Certificates returned to
the 1st ASSIGNOR, or to any third party appointed by it, in
writing. Messrs. Pieter J. F. van Voorst Vader and Roge rio
Carlos Lamim Braz (the Bailees) are made depositories of the
86,000.00 (eighty six thousand) shares mentioned in the present
item and shall return them to the ASSIGNORS, in hands of the 2nd
ASSIGNOR, or any third party appointed by him, in writing,
provided all of the conditions hereunder expressed in item c
below are totally met, under penalty of prison as determined by
the Brazilian Law. The deliverance of the Shares to the 2nd
ASSIGNOR, or to any third party appointed by him, shall be
evidenced by a discharge and release document, to be executed
by the ASSIGNORS in favor of the Bailees, releasing both Bailees
from their obligation, as set forth herein. Such document may
be executed either by the 1st or the 2nd ASSIGNOR, separately,
being understood that the signature of any of the ASSIGNORS
shall be enough and legally satisfactory to discharge the
Bailees from their commitment, as herein undertaken.
c) It is clearly understood that once the period of 1 (one) year, above
agreed by the parties in letter "b.2", have reached its final term,
and in the case there has not been and does not exist any breach by
the any of the ASSIGNORS, either related to the representation or to
any obligation herein undertaken by the ASSIGNORS, or debts of any
kind related to the previous management, carried out in the Company
before this date, the Bailees shall immediately deliver to the 2nd
ASSIGNOR, or to any third party appointed by him, in writing, the
respective Certificates, evidencing the transfer of the shares as
described in the precedent letter "b.2". Nevertheless, it is also
understood and agreed that the period of time of 1 (one) year, above
mentioned, is not related and does not intend to refer to any of the
prescription terms hereunder established, or determined by the law,
but only to guarantee the ASSIGNEE for a short period of time. The
ASSIGNORS shall remain, jointly and severally, as personal guarantors
of all the obligation and duties during all the terms foreseen in the
respective laws and local legislation, regarding the Company.
d) The ASSIGNORS herein declare and represent that they are acquiring the
Shares from the ASSIGNEE for investment and not with a view to their
public distribution.
e) In order to satisfy the U.S. Securities Act of 1933, the Shares shall
have placed with a legend, as follows: "The shares represented by this
certificate have not been registered under the Securities Act of 1933.
The shares have been acquired for investment and may not be sold,
transferred or assigned in the absence of an effective registration
statement for these shares under the Securities Act of 1933 or an
opinion of the company's counsel that registration is not required
under said Act."
f) The ASSIGNEE undertakes to have the Shares related to letters "a" and
"b" above included in a registration statement to be filed by the
ASSIGNEE with the US Securities and Exchange Commission (the SEC)
under the Securities Act of 1933 no later than 20 (twenty) business
days, as from the execution of this Agreement, and following such
registration to exert ASSIGNEE's best efforts to cause the SEC to
declare such registration statement effective at the earliest
possible time.
<PAGE>
2.2. The ASSIGNORS hereby undertake and declare themselves jointly and
severally fully committed to give full, irrevocable and irreparable
acquittance, concerning the payment of any of the parcels of the
Price, when done, and to declare not to have anything else to charge,
receive, complain or demand to or against the ASSIGNEE, at any title,
under any reason, regarding the portion of the Price already paid.
The ASSIGNORS grant to each other reciprocal powers to receive any
parcel of the Price and to give the respective acquittance, being
understood that the acquittance given by any of the ASSIGNORS shall
to oblige both ASSIGNORS before the ASSIGNEE.
2.3 The parties execute, in this date, the amendment to the Articles of
Incorporation of the Company, transferring and assigning all of the
Quotas to the Assignee. Such amendment shall be immediately filed
before the Board of Trade of the respective State.
2.3. The ASSIGNORS acknowledge that any verification of capital gain, and
the payment of any eventual income tax, are under their sole
responsibility.
3. THE ASSIGNORS' REPRESENTATIONS
3.1. The ASSIGNORS represent and warrant to the ASSIGNEE, under the law
penalties, that:
I. The 1st. ASSIGNOR is a private company, duly organized and validly
existing under the laws of the British Virgin Islands, having all its
acts and registers duly filed, as well as all the authorization
necessary to the assignment and transfer of the Quotas, as well as
the due approval of its Board of Directors;
II. The Company is a limited liability company, duly organized and
validly existing under the laws of the Federative Republic of Brazil,
in normal function, with all legal documents duly filed before the
respective authorities, whose Articles of Incorporation are duly
filed before the Board of Trade of the State of Goias, and registered
under the nr. 52.200.300.167, as of 08.31.81, and its last amendment
to the articles of incorporation, dated of 09.05.96, is under
examination in the same Board of Trade, having the protocol for file
nr.96/037543-0, dated 05.23.96. The total paid in capital, in June
4th , 1996, is R$ 100,000.00 (one hundred thousand reais), divided
into 100,000 (one hundred thousand) quotas, each one with an
individual face value of de R$ 1,00 (one real);
III. The ASSIGNORS, each representing related to their respective
participation in the Company, are the true, lawful and sole owners of
the Quotas, which are totally free of any liens and encumbrances,
liabilities or any other obligations, and the ASSIGNORS have the
total free disposal of such Quotas;
IV. There is no restriction which may prevent the assignment and
transfer, by the ASSIGNORS, of the Quotas, nor which may restraint
the ASSIGNORS' right of disposing of such Quotas, herein assigned to
the ASSIGNEE, being understood that this Contract does not harm or
collide with any other statutory disposition of the 1st. ASSIGNOR, or
any agreement executed by any of the ASSIGNORS with third parties;
V. There is no other document or Quotaholders Agreement, which may
restraint the free circulation of the Quotas, as well and the
ASSIGNORS do not have any debt to the Company or any credit against
the Company;
VI. The ASSIGNORS do not have any claim against the Company, nor any
right to demand, plead or litigate concerning its participation in
the Company, being understood that, in the case any such right or
expectancy of right and/or credit arises from any unknown or
undisclosed information, such right or expectancy of right and/or
credit is herein assigned to the ASSIGNEE, as a part of this
Agreement;
<PAGE>
VII. In this date, there is no deliberation and/or commitment which may
implicate in the issuance, by the Company, of new Quotas, or the
configuration of any option for future Quotas subscription, either
in benefit of the any of the ASSIGNORS, or in benefit of third
parties;
VIII. All the Company's administrators who represent the ASSIGNORS'
interest in it resign, collectively, in this act, giving to the
Company the ASSIGNEE the fully, irrevocable and irrepealable
acquitance, concerning the period the administrators acted in the
Company, declaring not to have anything to receive, complain or
request from the Company, under any title or reason;
IX. All powers of attorney granted by the ASSIGNORS are revoked as of
this date;
X. Both the ASSIGNORS give to the Company full acquittance for the
period of time the ASSIGNORS participated in it as quotaholders,
declaring, also, that they have always voted in favor of the
Company's interests, whenever they have been convoked to do it;
XI. The 1st. ASSIGNOR is in good standing, and there is no legal
procedures or fact which may put in danger or weaken its financial
health and/or its commercial credibility, or even which may cause
any harm or damage to this transaction;
XII. There is no legal procedures or fact which may put in danger or
weaken the 2nd ASSIGNOR's financial health and/or commercial
credibility, or even which may cause any harm or damage to this
transaction;
XIII. All of the verification and declaration are based on the Balance
Sheet of the Company prepared in Dec. 31st, 1995, as well as in the
Balance as of April 30th, 1996, which become part of this Contract,
as Exhibits 1 and Exhibit 2;
XIV. The Company's Balance Sheet prepared in Dec. 31st, 1995 does present
the financial situation of the Company in that date, and has been
prepared according to the Brazilian GAAP;
XV. There has not been, between the date of the Balance prepared in
04.30.96 and the present date, any substantial alteration in the
Company's business or activities;
XVI. All of the Company's social documents and fiscal book are regularly
opened and duly accounted, according to the legal requirements;
XVII. All of the assets and rights which belong to the Company do
physically exist, having been suitable amortized or depreciated, if
the case, or there has been constituted the due provision, necessary
to face any eventual loss in the liquidation of credits, being,
therefore, converted in cash by its accounted value, except for the
provision stated in clause 3.2;
XVIII. All of the assets physically located in the Company's stores belong
to the Company, except for any eventual free loan for use (comodato)
of any equipment belonging to third parties, and all of them are
duly accounted and fully paid, not existing any dispute of any
nature related to such assets, except for the provision of clause
3.2.;
<PAGE>
XIX. All of the assets and rights which belong to the Company are free
from any liens or encumbrances;
XX. The ASSIGNORS do not know about the existence of any due taxes,
contributions, charges or any other duty for which the Company has
not created a suitable provision
XXI. The Company has materially observed and accomplished with all of the
laws and rules applicable to the running of its business;
XXII. The Company has, in this date, 39 (thirty nine) employees, under the
FGTS regime;
XXIII. All of the social, commercial, fiscal and labor obligation of the
Company are updated and not in delay, and there is not any suits,
execution and/or labor proceedings against the Company,
administrative and/or judicial procedures, in any court or
jurisdiction, except for those related in Exhibit 3
XXIV. There is no legal or contractual impediment or obstruction for the
regular functioning of the Company, including all of the rules
related to urban occupation and environmental protection. Also, all
the stores operated by the Company have all the licenses and
documents required for their regular operation;
XXV. The Company is not surety and/or guarantor of any person or company;
XXVI. All of the revenues, wages, additional of any kind, payment for
overtime, deposits in FGTS and indemnification have been paid in time;
XXVII. There is no Federal, State or Municipal examination in course in any
of the stores of the Company, or in the Company itself, and the
ASSIGNORS do not know about any legal suit which is to be proposed
against the Company;
XXVIII. There is no infraction record or penalty applied to the Company,
related to any of the Company's stores, except for those related in
Exhibit 4;
XXIX. All of the necessary authorization for the regular function of the
stores were obtained in time;
XXX. All of the taxes, contributions and charges related to the stores
operated by the Company were paid in time, except for those related
in Exhibit 5;
XXXI. All of the values and amounts related to rental or lease agreements,
concerning the real state used by the stores which are operated by
the Company, including the charges and taxes, have been paid in time,
and, therefore, there is no debt concerning these values or amounts;
XXXII. They are acquiring the Shares from the ASSIGNEE for investment and
not with a view to their public distribution, except (i) pursuant to
a current registration statement under the U.S. Securities Act of
1933, as amended, covering the Shares; or (ii) pursuant to an
available exemption from registration under such Act;
XXXIII. There is no agreement or contract, either written, oral or tacit,
executed between the Company and any other soft drink company than
the ones which supplies Coca-Cola to the Company.
<PAGE>
3.2. The parties declare their knowledge to the fact that concerning the
representations which are direct or indirect related to the Company's
Balances of Dec. 31st, 1995 and April 30th, 1996, there may be an
inexactness with reference to the accounting of the physical
situation and value of the assets belonging to the Company, which,
however, exist in fact and under the law.
4. THE ASSIGNEE'S REPRESENTATIONS
4.1. The ASSIGNEE represents and warrants to the ASSIGNORS, under the law
penalties, that:
I. it has all the corporate authorizations necessary to carry on with
this Contract and to issue the Shares to the ASSIGNORS, which does
not harm or collide any statutory or corporate disposition, nor any
agreement, executed with third parties;
II. it is totally economical and financial capable to contract all the
obligations herein established, as well as to have them accomplished,
in time.
5 - THE AMENDMENT TO THE ARTICLES OF INCORPORATION
5.1 The parties execute, together with this Contract, an amendment to the
Articles of Incorporation of the Company, through which the ASSIGNORS
assigns and transfer 99.9% (ninety nine point nine percent) of the
Quotas to the ASSIGNEE, and 0.1% (zero point one percent) to any
third party appointed by the ASSIGNEE, according to the provisions of
the law.
5.2. The Amendment to the Articles of Incorporation of the Company shall
be filed before the Board of Trade of the State of Goias.
5.3. The ASSIGNORS agree to execute, at first request and in due time,
any and all additional documents which may be necessary for the
assignment and transfer of the Quotas to the ASSIGNEE, according to
this Contract.
6. INDEMNIFICATION
6.1. The ASSIGNORS and the INTERVENOR declare themselves severally and
jointly responsible for all the representations expressed in this
Contract, as well as for all the acts and facts practiced by the
ASSIGNORS and/or the INTERVENOR, occurred up to this date,
undertaking, furthermore, as GUARANTORS, to hold harmless and to
indemnify the ASSIGNEE for all the losses or payments the ASSIGNEE
may suffer or be compelled to do, or due to any debt or
responsibility related to any fact or act that the ASSIGNORS or the
INTERVENOR may have practiced, neglected or omitted, or even due to
a consequence of any inexactness verified or, also, due to any
obligation previously undertaken by the Company, or any
superveniences, everything either reflected or not in the
accountancy of the Company, including any under evaluated
liabilities, being understood that all the responsibilities herein
undertaken by the ASSIGNORS and the INTERVENOR regards only to the
acts practiced by them in the period precedent to the date of the
execution of this Agreement, and also that:
6.1.1. The obligation of indemnification, herein undertaken by
the ASSIGNORS and the INTERVENOR, according to clause
6.1. above, shall last for a period of 5 (five) years,
regarding the taxes and labor issues and proceedings,
and for legal prescription terms all other obligation,
all of them as from this date. The rule herein
established in this subclause 6.1.1. includes all of the
legal proceedings already in course, as listed in
Exhibit 3
<PAGE>
6.1.2. Any amount due according to clause 6.1. shall be informed
to the any of the ASSIGNORS or to the INTERVENOR, at the
ASSIGNEE's choice, by means of fax transmittal, with
confirmation of transmission, or a simple letter, with
confirmation of reception, and shall be paid, by the
ASSIGNORS or the INTERVENOR, within the unsurpassable
term of 7 (seven) days, as from the reception of the
notification above mentioned. In the case of delay, by
the ASSIGNORS or the INTERVENOR, of the payment herein
established, it shall be added 10% (ten percent), as
compensatory fine, to the amount due by the ASSIGNORS and
the INTERVENOR, plus interests at a rate of 1% (one
percent) per month.
6.1.3. In the case any governmental authority or third parties
initiate any administrative or judicial proceeding
against the Company, or decide to collect any amount or
to demand any right against the Company, risen due to any
act, fact or omission occurred during the management
carried out in the Company, either by the ASSIGNORS or
by the INTERVENOR, the ASSIGNEE shall notify one of the
ASSIGNORS or the INTERVENOR, at its choice, by means of
a fax, with the confirmation of transmission, or or
simple letter, with confirmation of reception, within
suitable time, in order to allow the ASSIGNORS or the
INTERVENOR to follow closely such events, as well as the
verification of the respective responsibilities, and
also to take the necessary steps they may understand,
including for the purpose of appointing a counsel for
such attendance, in order to have their rights and
interests protected, due to their obligation in
indemnifying the ASSIGNEE, as established in clause 6.1.
and according to the rules of subclauses 6.1.3.1.,
6.1.3.2. and 6.1.3.3. In the case the ASSIGNEE does not
obey to the rules herein determined, related to its
obligation in notifying one of the ASSIGNORS or the
INTERVENOR regarding any administrative and/or judicial
proceeding, according to this subclause 6.1.3, then the
ASSIGNORS and the INTERVENOR shall not be obliged to
face the obligation of indemnifying the ASSIGNEE,
concerning the amounts related to such proceedings.
6.1.3.1. The ASSIGNORS and/or the INTERVENOR may take upon the
responsibility regarding the Company's interests, at
their own and sole expenses, in the case of any
proceedings against the Company, regarding this clause 6
and its subclauses, up to the final solution of the
dispute, being understood that the ASSIGNORS and the
INTERVENOR are full responsible to offer all the
guarantees it may be requested to protect the Company's
interests and to allow its defense, either in the
administrative or in the judicial fields.
6.1.3.2. In the event the ASSIGNORS and/or the INTERVENOR decide
to take upon the responsibility of defending the Company
up to the final solution of the dispute, the ASSIGNEE
shall permit their access to all the books and documents,
necessary to the elaboration of the defense of the case.
In such case, the ASSIGNEE shall have the right to demand
from the ASSIGNORS and/or the INTERVENOR to guarantee,
jointly and severally, the timely payment of the debt,
if and when necessary, according to the law, as a
condition to suspend, up to the final decision of the
respective legal proceeding, the joint and several
responsibility of the ASSIGNORS and/or the INTERVENOR,
as established in clause 6. In that hypothesis, there
will be no compensation, as determined in such clause
6.2 below.
6.1.3.3. The ASSIGNORS and/or the INTERVENOR shall notify the
ASSIGNEE, , by means of fax transmittal, with
confirmation of transmission, or simple letter, with
confirmation of reception, about their decision in
taking upon the defense of the proceedings mentioned in
clause 6.1.3.2. above, within the term of 72 (seventy
<PAGE>
two) hours, as from the reception of the notification
herein above mentioned in subclause 6.1.3, excluding
Saturdays, Sundays and holidays, provided such excluded
days are not part of the legal term granted to the
Company to present its defense. The absence, by the
ASSIGNORS and/or the INTERVENOR, in answering such
notification, shall be interpreted as their abdication
in exercising such right.
6.2. The parties agree that the ASSIGNEE is duly authorized to proceed to
the compensation of all and any payment it may be compelled to make,
due to the existence of any debt, including, but not limiting, to
taxes, contribution, charges, social, commercial, fiscal, corporate
or labor obligations, which are or should be under the ASSIGNORS
and/or the INTERVENOR responsibility, by means of not delivering the
balance of the Shares, given by the ASSIGNORS to the ASSIGNEE, as a
Pledge, according to this Contract. In such case, the ASSIGNEE may
proceed with the execution of the guarantee, including any and all
dividends, bonus, splits or advantages related to the Shares, without
any notice to the ASSIGNORS, within the conditions of this Contract.
If the deduction is not enough to cover the undue payment made by the
ASSIGNEE, then the ASSIGNORS and/or the INTERVENOR shall pay to the
ASSIGNEE the remaining difference. Such compensation will only take
place in case the ASSIGNORS and/or the INTERVENOR do not comply with
their indemnity obligation in the terms provided for in this clause
6.
7 - THE ABDICATION TO THE MANDATES AND THE REVOCATION OF THE
POWERS OF ATTORNEY
7.1. The ASSIGNORS hereby declare that all the Company's administrators
renounce to their mandates.
7.2. The ASSIGNORS present, in this act, the revocation of all the powers
of attorney granted to third parties by the Company, as Exhibit 6.
8 - NON COMPETITION
8.1 The ASSIGNORS and the INTERVENOR undertake not to act in Brazil, either
by themselves, or through third parties, individually, personally or
by means of incorporation of any company or participation in the
capital of any company, at any title, for any reason, for term of 5
(five) years, as from the execution of this Contract, in any business
related to the trade concerning the hamburger fast-food system. Such
prohibition does not include the participation, by the ASSIGNORS and/or
the INTERVENOR, in the capital of the ASSIGNEE.
8.1.1 The inobservance by the ASSIGNORS and/or the INTERVENOR
regarding the commitment above undertaken, shall cause
to the breach party, individually, to pay a compensatory
fine, equivalent to US$ 1,000,000.00 (one million
American dollars), to be collected through executive
procedure, according to the applicable law.
8.1.2. The breach by the ASSIGNORS and/or the INTERVENOR,
related to clause 8 above, may be proved through a
simple evidence, by any means, of the performance of the
ASSIGNORS and/or the INTERVENOR, personally or through
third parties, in the hamburger fast food system.
8.1.3. The parties hereby acknowledge and accept that the
pecuniary fine above agreed shall not constitute a
sufficient reparation to the infringement, by the
ASSIGNORS and/or the INTERVENOR, third parties or
companies incorporated by them or in which any of them
<PAGE>
participates, of the rule established in this clause 8
and its subclauses. Therefore, and independently of the
right of the ASSIGNEE to make use of all the resources
available to guard and defend its rights, it is herein
agreed that the ASSIGNEE may demand, in such case, to be
indemnified by all losses, damages and/or ceasing
profits derived from the inobservance, by the ASSIGNORS
and/or the INTERVENOR, related to this clause 8, to be
verified in a specific proceeding, and paid independently
of the fine to which they are submitted to, according to
subclause 8.1.1.
9 - THE NOTICES
9.1. Any notice to be given, regarding this Contract, shall be considered
as effective if delivered by fax or letter, in any case with
confirmation of reception and copy, from the ASSIGNORS to the
ASSIGNEE, and from the ASSIGNEE to any of the ASSIGNORS or to the
INTERVENOR, obliging all of them, in the following addresses:
ASSIGNORS: Rucker Holdings Corporation
Omar Hodge Building, Wickham's Cay,
Road Town, Tortola, BVI
Att: Rosa Restrepo
Tel.: (1 809) 494-4977
Fax: (1 809) 494-4980
Teodoro Henrique da Silva
Rua Ribeirao Branco 333, Vila Oratoria
Sao Paulo, SP - Brazil
Tel.: (5511) 820-0828
Fax: (5511) 820-3763
INTERVENOR: Teodoro Henrique da Silva Jr.
Rua Ribeirao Branco 333, Vila Oratoria
Sao Paulo, SP - Brazil
Tel.: (5511) 820-0828
Fax: (5511) 820-3763
ASSIGNEE: Brazil Fast Food Corp
Praia do Flamengo 200/22th floor
Flamengo - Rio de Janeiro - RJ - Brazil
Att.: Mr. Pieter J. F. van Voorst Vader or Mr.
Rogerio C. L. Braz
Tel: (5521) 285-2424
Fax: (5521) 205-5768
10 - GENERAL DISPOSITIONS
10.1. The nullity or invalidity of any of the clauses herein agreed shall
not cause any harm to the validity and enforceability of all of the
other dispositions, which shall be strictly observed and accomplish
by the parties. The parties herein undertake to endeavor their best
efforts to have all the dispositions duly valid and enforceable, with
the same effects and purposes of the ones which were considered either
null or void.
10.2. This Contract and its Exhibits reflect the whole operation as it has
been agreed by the parties, and constitute an integral agreement
between them, relating to all the information herein expressed,
<PAGE>
superseding, therefore, any and all previous agreements or
negotiation, either oral or written, with reference to the object of
this Contract.
10.3. This Contract represents the parties' will, and there is no other
commitment which may not be herein foreseen, being understood that this
Contract can only be changed or amended in writing, by the parties'
mutual agreement.
10.4. This Contract is made in both Portuguese and English languages, being
understood that, in case of any doubt, the Portuguese version shall
prevail.
10.5. This Contract and the rights and obligations herein established are
irrevocable, and shall be binding upon and shall inure to the benefit
of the respective administrators, successors and assigns of the
Parties hereto
10.6 This Agreement and obligations herein established shall be construed
under the laws of the Federative Republic of Brazil, as well as the
legal relations between the Parties. The Court of the city of Rio de
Janeiro, RJ, Brazil will have jurisdiction.
10.7. Each party shall be responsible for all the costs related to the
respective counsels and/or professionals hired for the execution of
the documents and verification necessary to the implementation of this
Contract and its purposes.
10.8. The Company is present to this act and, through its legal
representative, declares not to have any objection to this operation,
nor to be acquainted to any act which could impede or obstruct the
determinations and rules herein agreed.
10.9 The INTERVENOR declares to know and to agree to all the dispositions
herein expressed, undertaking to observe and accomplish with all of
them, specially the ones related to clauses 6 and 8, and their
subclauses.
10.10 The following Exhibits are to be considered as part of this Contract,
for all the purposes and effects herein agreed:
Exhibit 1 - Balance Sheet prepared in Dec. 31st, 1995
Exhibit 2 - Balance Sheet as of April 30th, 1996
Exhibit 3 - Relation of all of the suits, execution and/or labor
proceedings against the Company, administrative and/or
judicial procedures, in any court or jurisdiction
Exhibit 4 - Relation of all the infraction records or penalties applied
to the Company, related to any of the Company's stores
Exhibit 5 - Relation of all taxes, contributions and charges, related
to the stores, which were not paid in time
Exhibit 6 - The revocation of all the powers of attorney granted to
third parties by the Company
<PAGE>
(Continuation of the AGREEMENT FOR THE ASSIGNMENT AND TRANSFER OF QUOTAS,
executed between Rucker Holdings Corporation, Mr. Teodoro Hemrique da Silva,
Mr. Teodoro Henrique da Silva Jr. and Brazil Fast Food Corp)
IN WITNESS WHEREOF, the Parties have executed this Contract in the places
and dates hereunder mentioned, in 3 (three) original counterparts, for the
same effect, in the presence of two (2) witnesses.
ASSIGNORS: RUCKER HOLDINGS CORPORATION
________________________________________________
By: Isabel Cristina Cioffi da Silva
Title: Attorney in Fact
Executed in (place):
Date:
Witnesses:
1. _______________________________________________
Name:
I.D.:
2. ________________________________________________
Name:
I.D.:
__________________________________________________
Teodoro Henrique da Silva
Executed in (place):
Date:
Witnesses:
1. _______________________________________________
Name:
I.D.:
2. ________________________________________________
Name:
I.D.:
ASSIGNEE: BRAZIL FAST FOOD CORP.
__________________________________________________
By: Pieter J. F. van Voorst Vader / Rogerio Carlos Lamin Braz
Executed in (place):
Date:
Witnesses:
1. _______________________________________________
Name:
I.D.:
2. ________________________________________________
Name:
I.D.:
<PAGE>
(Continuation of the AGREEMENT FOR THE ASSIGNMENT ANd TRANSFER OF QUOTAS,
executed between Rucker Holdings Corporation, Mr. Teodoro Hemrique da Silva,
Mr. Teodoro Henrique da Silva Jr. and Brazil Fast Food Corp)
INTERVENOR: __________________________________________________
Teodoro Henrique da Silva Jr.
Executed in (place):
Date:
Witnesses:
1. ______________________________________________
Name:
I.D.:
2. ______________________________________________
Name:
I.D.:
2nd INTERVENOR: BIGBURGER GOIANIA LANCHONETES LTDA.
________________________________________________
By:
Title:
Executed in (place):
Date:
Witnesses:
1. _______________________________________________
Name:
I.D.:
2. ________________________________________________
Name:
I.D.:
