First Amendment To Transfer/Assignment and Agreement to Operate
Hangzhou American Flavors Dairy Products Joint Venture Project
1. Introduction. This Agreement, which is made this 28th day of
January, 1998, is the First Amendment to a certain Transfer/Assignment
Agreement, dated the 3rd day of September, 1997, by and between American
Flavors China (AFC), a Delaware corporation having a principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and China
Peregrine Food Corporation (CPFC), a Delaware corporation having a principal
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ Point,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. Considerations. The following facts and events have been duly
considered by the parties in entering into this Agreement:
2.1 By the aforesaid Transfer/Assignment Agreement, CPFC has agreed
to purchase the entire interests of AFC in and to a certain Joint Venture
Contract, with respect to a joint venture business known as Hangzhou
Meilijian Dairy Products Co., Ltd. (Hangzhou Meilijian), and AFC has agreed
to transfer and assign such interests to CPFC. [Section 3.1 of the
Transfer/Assignment Agreement]
2.2 In full consideration for the aforesaid transfer and assignment,
CPFC has agreed to direct its Stock Transfer Agent to issue 870,279 shares
of the common stock of CPFC to AFC and grant options for 235,406 shares of
the common stock of CPFC to AFC at the option price of $1.00 per
share.[Section 3.1 of the Transfer/Assignment Agreement]
2.3 In addition to the foregoing provisions of the aforesaid
Transfer/Assignment Agreement, CPFC has agreed therein to pay to AFC the
amount of $240,000 (US), upon certain terms, conditions and contingencies,
to wit: that CPFC, at its option and in its sole discretion, in lieu of
making payments directly to AFC as set forth above, shall have the right to
issue a joint check or draft in payment of this obligation to AFC and
Evergreen in satisfaction of a certain debt owed by AFC to Evergreen in
connection with a certain packing machine delivered by Evergreen to Hangzhou
Meilijian Dairy Products Co., Ltd. for its use and benefit. [Section 3.3.b
and 3.3.b.(ii) of the Transfer/Assignment Agreement]
2.4 In consideration of such payment by CPFC, AFC has assigned and
transferred to CPFC all of its rights and interest to receive and collect
from Hangzhou Meilijian Dairy Products Co., Ltd. the corresponding
obligation owing to AFC in the amount of $240,000 (US). [Section
3.3.b.(iii) of the Transfer/Assignment Agreement]
2.5 To date, the assignment and transfer of AFC's interests to the
Joint Venture Contract as provided in the Transfer/Assignment Agreement has
not be approved by the Board of Directors of Hangzhou Meilijian in
accordance with Article 13 of the Joint Venture Contract, as a condition
precedent to the aforesaid Transfer/Assignment Agreement. [Section 4.2.b of
the Transfer/Assignment Agreement]
3. Basic Agreement. In consideration of the mutual promises
contained in this First Amendment, the parties agree to the following:
3.1 Section 3.1 of the Transfer/Assignment Agreement is amended to
reduce the consideration from CPFC to AFC set forth therein from 870,279
shares of the common stock of CPFC to 816,279 shares of such common stock.
3.2 Sections 3.3.b. (i) through (iv) of the Transfer/Assignment
Agreement are hereby deleted and the following provisions are substituted in
lieu thereof:
b. In addition, CPFC shall assume and pay a certain debt owed by
AFC to Evergreen in connection with a certain packing machine
delivered by Evergreen to Hangzhou Meilijian Dairy Products
Co., Ltd. for its use and benefit; in consideration of such
assumption by CPFC, AFC hereby assigns and transfers to CPFC
all of its rights and interest to receive and collect from
Hangzhou Meilijian Dairy Products Co., Ltd. the corresponding
obligation owed to AFC in connection with AFC's obligation to
Evergreen for the aforesaid Evergreen packing machine
received and used by Hangzhou Meilijian Dairy Products Co.,
Ltd.
3.3 CPFC shall pay to AFC the sum of $210,000.00 (US) for the benefit
of ▇▇. ▇▇▇▇▇▇ ▇▇, who presently is one of AFC's designated Board members on
the Board of Directors of Hangzhou Meilijian Dairy Products Co., Ltd. The
aforesaid $210,000.00 shall not be paid to ▇▇. ▇▇ directly; upon (a) receipt
of a duly acknowledged copy of a resolution of the Board of Directors of
Hangzhou Meilijian Dairy Products Co., Ltd. approving the assignment and
transfer of the interests to the Joint Venture Contract, in accordance with
Article 13 of the Joint Venture Contract and (b) receipt of the written
final approval of such transfer and assignment by the Hangzhou Foreign
Economic and Trade Commission and any other appropriate governmental agency
of the People's Republic of China, both as provided in the
Transfer/Assignment Agreement, CPFC shall pay such amount to AFC. By this
First Amendment, CPFC does not recognize or acknowledge any obligation or
responsibility, either direct or indirect, to ▇▇. ▇▇, nor does this First
Amendment create any third party beneficiary rights with respect to this
Section 3.3, nor should any such recognition, acknowledgment or beneficiary
rights be deemed to exist by virtue hereof. AFC shall indemnify and hold
harmless CPFC with respect to any claim made by ▇▇. ▇▇ or his successors,
heirs or assigns, under this Section.
3.4 The date set forth in Section 4.2.b for the aforesaid approval of
the assignment and transfer of the interests to the Joint Venture Contract
in accordance with Article 13 thereof, shall be extended to and including
April 15, 1998.
4. Counterparts. This Agreement may be executed in several and
separate counterparts which, collectively, shall constitute the operative
Agreement among the parties.
5. Law Governing. This Agreement shall be governed by the laws of
the State of Delaware, without consideration of choice of law principles.
6. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may
be amended only by a written amendment executed by both parties. The waiver
by any party of a breach of any provision of this Agreement shall not be a
waiver of any subsequent breach.
7. Ratification Of Underlying Agreement. Except as otherwise stated
herein, the Transfer/Assignment Agreement of September 3, 1997 is hereby
ratified and restated in its entirety.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day
and year first above written.
CHINA PEREGRINE FOOD CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇, Chairman
AMERICAN FLAVORS CHINA, INC.
By /s/ ▇▇▇▇▇▇▇▇ Sender
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▇▇▇▇▇▇▇▇ Sender
Chairman and Chief Executive Officer
