SHARE PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 7th day of January, 2000.
BETWEEN:
XXX XXXXXXXXXX, of Stekene
(hereinafter referred to as "X. Xxxxxxxxxx")
- and -
XXXXX DE LAET, of Stekene
(hereinafter referred to as "H. De Laet")
- and -
e-AUCTION BELGIUM N.V., a corporation incorporated under the
laws of Belgium
(hereinafter referred to as the "Purchaser")
- and -
e-AUCTION GLOBAL TRADING INC., a corporation incorporated
under the laws of the State of Nevada
(hereinafter referred to as "e-Auction")
- and -
WHEREAS X. Xxxxxxxxxx, H. De Laet, and Schelfhout-De Laet (collectively
referred to as the "Vendors") are the registered and beneficial owners of all
the issued and outstanding share capital of Schelfhout Computer Systemen N.V.
("Schelfhout").
AND WHEREAS the Purchaser is willing to purchase and the Vendors are
willing to sell all of the issued and outstanding share capital of Schelfhout on
the terms and conditions contained in this Agreement;
NOW THEREFORE this Agreement witnesses that, in consideration of the
mutual covenants and agreements contained herein, the parties covenant and agree
as follows:
ARTICLE 1
INTERPRETATION
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1.1 DEFINITIONS. In this Agreement or in any amendment hereto, the following
terms shall have the meanings set out below unless the context requires
otherwise:
(a) "AFFILIATE" means, with respect to any Person, any other
Person who directly or indirectly controls, is controlled by,
or is under direct or indirect common control with, such
Person, and includes any Person in like relation to an
Affiliate. A Person shall be deemed to control a Person if
such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting
securities, by contract or otherwise; and the term
"controlled" shall have a similar meaning.
(b) "AGREEMENT" means this Agreement, including the Schedules to
this Agreement, as it or they may be amended or supplemented
from time to time, and the expressions "HEREOF", "HEREIN",
"HERETO", "HEREUNDER", "HEREBY" and similar expressions refer
to this Agreement and not to any particular Section or other
portion of this Agreement.
(c) "APPLICABLE LAW" means, with respect to any Person, property,
transaction, event or other matter, any law, rule, statute,
regulation, order, judgement, decree, treaty or other
requirement having the force of law (collectively, the "LAW")
relating or applicable to such Person, property, transaction,
event or other matter. Applicable Law also includes, where
appropriate, any interpretation of the Law (or any part
thereof) by any Person having jurisdiction over it, or charged
with its administration or interpretation.
(d) "ASSETS" means all of the property, assets, interests and
rights of Schelfhout of every kind and description and
wherever situated including, without limiting the generality
of the foregoing, the following:
(i) the Real Property;
(ii) the Personal Property;
(iii) the Inventories;
(iv) the Receivables;
(v) all rights and interests under or pursuant to all
warranties, representations and guarantees, express,
implied or otherwise, of or made by suppliers or
others in connection with the Assets or otherwise
Related to the Business;
(vi) the Intellectual Property;
(vii) the Material Contracts;
(viii) the Licences and Permits;
(ix) the Books and Records;
(x) all goodwill Related to the Business, the present
telephone numbers, internet domain addresses and
other communications numbers and addresses of
Schelfhout; and
(xi) all proceeds of any or all of the foregoing received
or receivable after the Closing Time.
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(e) "BOOKS AND RECORDS" means all books, records, files and papers
of Schelfhout, Related to the Business including without
limitation, financial, operating, inventory, legal and payroll
information, drawings, engineering information, computer
programs (including source code), software programs, manuals
and data, sales and advertising materials, sales and purchases
correspondence, trade association files, research and
development records, lists of present and former customers and
suppliers, personnel, employment and other records, and the
minute and share certificate books of Schelfhout, and all
copies and recordings of the foregoing.
(f) "BUSINESS" means the business carried on by Schelfhout which
primarily involves the facilitating of electronic auctions of
perishable commodities (fish, flowers, fruits and vegetables).
(g) "BUSINESS DAY" means any day except Saturday, Sunday, a
statutory holiday in the Province of Ontario or any other day
on which banks are generally not open for business in the City
of Xxxxxxx, Xxxxxxx.
(h) "CLAIM" has the meaning ascribed thereto in Section 6.1.
(i) "CLOSING" means the completion of the purchase and sale of the
Shares in accordance with the provisions of this Agreement.
(j) "CLOSING DATE" means January 7, 2000 or such earlier or later
date as may be agreed upon in writing by the parties to this
Agreement.
(k) "CLOSING TIME" means the time of closing on the Closing Date
provided for in Section 3.1.
(l) "CONDITION OF THE BUSINESS" means the condition (financial or
otherwise) of the Business taken as a whole, having regard to
its earnings, Assets, Liabilities, properties, operations and
prospects.
(m) "CONSENTS AND APPROVALS" means all consents and approvals
required to be obtained in connection with the execution and
delivery of this Agreement and the completion of the
transactions contemplated by this Agreement including any and
all third party consents required under any of the Contracts
in connection with or as a result of the transfer of the
Assets and Shares to the Purchaser.
(n) "DEPOSIT" has the meaning ascribed thereto in Section 2.3.
(o) "DIRECT CLAIM" shall have the meaning ascribed thereto in
Section 6.4.
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(p) "e-AUCTION SHARES" means 3,636,364 common shares in the
capital of e-Auction Global Trading Inc. to be delivered to
the Vendors pursuant to section 2.4(c) hereof.
(q) "EMPLOYEES" means an individual who is employed by Schelfhout
in the Business, and "EMPLOYEES" means every Employee.
(r) "INDEMNIFIED PARTY" means a Person whom Schelfhout, the
Purchaser or e-Auction, as the case may be, has agreed to
indemnify under Article 6.
(s) "INDEMNIFYING PARTY" means, in relation to an Indemnified
Party, the party to this Agreement which has agreed to
indemnify that Indemnified Party under Article 6.
(s1) "INITIAL SHARE VALUE" shall have the meaning ascribed thereto
in section 2.4 hereof.
(t) "INTELLECTUAL PROPERTY" means all rights to and interests in:
(i) all business and trade names, corporate names, brand
names and slogans Related to the Business;
(ii) all inventions, patents, patent rights, patent
applications (including all reissues, divisions,
continuations, continuations-in-part and extensions
of any patent or patent application), industrial
designs and applications for registration of
industrial designs Related to the Business and
developed by Schelfhout;
(iii) all copyrights and trade-marks (whether used with
wares or services and including the goodwill
attaching to such trade-marks), registrations and
applications for trade-marks and copyrights (and all
future income from such trade-marks and copyrights)
Related to the Business and developed by Schelfhout;
(iv) all rights and interests in and to processes, lab
journals, notebooks, data, trade secrets, designs,
know-how, product formulae and information,
manufacturing, engineering and other drawings and
manuals, technology, blue prints, research and
development reports, agency agreements, technical
information, technical assistance, engineering data,
design and engineering specifications, and similar
materials recording or evidencing expertise or
information Related to the Business and developed by
Schelfhout;
(v) all of the intellectual property listed in Schedule
5.1(q)(i);
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(vi) all other intellectual and industrial property rights
throughout the world Related to the Business and
developed by Schelfhout;
(vii) all licences of the intellectual property listed in
items (i) to (vi) above;
(viii) all future income and proceeds from any of the
intellectual property listed in items (i) to (vi)
above and the licences listed in item (vii) above;
and
(ix) all rights to damages and profits by reason of the
infringement of any of the intellectual property
listed in items (i) to (vii) above.
(u) "INTERIM PERIOD" means the period commencing on June 30, 1999
and ending at the Closing Time;
(v) "LIABILITIES" means all costs, expenses, charges, debts,
liabilities, claims, demands and obligations, whether primary
or secondary, direct or indirect, fixed, contingent, absolute
or otherwise, under or in respect of any contract, agreement,
arrangement, lease, commitment, undertaking, Applicable Law or
Taxes.
(w) "LICENCES AND PERMITS" means all licences, permits, filings,
authorizations, approvals or indicia of authority Related to
the Business or required for the ownership and/or operation of
the Business and/or the Assets.
(x) "LIEN" means any lien, mortgage, charge, hypothec, pledge,
security interest, prior assignment, option, warrant, lease,
sublease, right to possession, encumbrance, claim, right or
restriction which affects, by way of a conflicting ownership
interest or otherwise, the right, title or interest in or to
any particular property.
(y) "MATERIAL ADVERSE CHANGE" means a change in the business,
operations or capital of Schelfhout or e-Auction which has had
or could reasonably be expected to have a significant adverse
effect on the value of the Business or the Shares.
(z) "MATERIAL CONTRACT" means an agreement (whether oral or
written) Related to the Business to which Schelfhout is a
party or by which Schelfhout or any of the Assets or the
Business is bound or affected except an agreement which
involves or may reasonably be expected to involve the payment
to or by Schelfhout of less than US$25,000 over the term of
the agreement and is not otherwise material to the Condition
of the Business.
(aa) "PARTY" means a party to this Agreement and any reference to a
party includes its successors and permitted assigns; and
"PARTIES" means every party.
(bb) "PERSON" is to be broadly interpreted and includes an
individual, a corporation, a partnership, a trust, an
unincorporated organization, and the successors, assigns,
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executors, heirs, administrators or other legal
representatives of an individual in such capacity.
(cc) "PERSONAL PROPERTY" means, without limitation, all machinery,
equipment, furniture, fixtures, fittings, motor vehicles and
other chattels Related to the Business (including those in
possession of third parties).
(dd) "PERSONAL PROPERTY LEASES" means all chattel leases, equipment
leases, rental agreements, conditional sales contracts and
other similar agreements.
(ee) "PRO-RATA BASIS" means, with respect to each Vendor, the
proportion of his holdings of shares in the capital of
Schelfhout, as set out in the recitals to this Agreement, to
the total number of shares in the capital of Schelflout
outstanding as at the Closing Time, being 50% each.
(ff) "PURCHASE PRICE" has the meaning ascribed thereto in Section
2.4.
(gg) "PURCHASER" means e-Auction Belgium N.V., a corporation
incorporated under the laws of Belgium.
(hh) "REAL PROPERTY" means all real property owned or used by
Schelfhout Related to the Business including, without
limitation, the Improvements.
(ii) "RECEIVABLES" means all accounts receivable, bills receivable,
trade accounts, book debts and insurance claims Related to the
Business together with any unpaid interest accrued on such
items and any security or collateral for such items, including
recoverable deposits.
(jj) "RELATED TO THE BUSINESS" means, directly or indirectly, used
in, arising from or relating in any manner to the Business.
(kk) "SCHELFHOUT" means Schelfhout Computer Systemen N.V., a
corporation incorporated under the laws of Belgium.
(ll) "SHARES" means all of the issued and outstanding share capital
of Schelfhout more specifically set out in the recitals to
this Agreement.
(mm) "TAXES" means all taxes, charges, fees, levies, imposts and
other assessments, including all income, sales, use, goods and
services, value added, capital, capital gains, alternative,
net worth, transfer, profits, withholding, payroll, employer
health, excise, franchise, real property and personal property
taxes, and any other taxes, customs duties, fees, assessments
or similar charges in the nature of a tax including pension
plan contributions, unemployment insurance payments and
workers' compensation premiums, together with any installments
with respect thereto, and any interest, fines and penalties
imposed by any governmental
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authority (including federal, state, provincial, municipal
and foreign governmental authorities), and whether disputed
or not.
(nn) "THIRD PARTY" has the meaning given in Section 6.6.
(oo) "THIRD PARTY CLAIM" has the meaning given in Section 6.4.
(pp) "VENDORS" means collectively X. Xxxxxxxxxx and H. De Laet.
1.2 HEADINGS. The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement.
1.3 NUMBER AND GENDER. Unless the context requires otherwise, words importing
the singular include the plural and vice versa and words importing gender
include all genders.
1.4 BUSINESS DAYS. If any payment is required to be made or other action is
required to be taken pursuant to this Agreement on a day which is not a Business
Day, then such payment or action shall be made or taken on the next Business
Day.
1.5 CURRENCY AND PAYMENT OBLIGATIONS. All dollar amounts referred to in this
Agreement are stated in United States Dollars and any payment required to be
made hereunder shall be made by electronic transfer or any other method as
agreed to from time to time by the parties hereto that provides immediately
available funds. In the case of the Vendors, payment by certified cheque, bank
draft or electronic transfer shall be made payable to the order of or to the
account of each Vendor, on a Pro-Rata Basis, or as they may otherwise direct in
writing.
1.6 STATUTE REFERENCES. Any reference in this Agreement to any statute or any
section thereof shall, unless otherwise expressly stated, be deemed to be a
reference to such statute or section as amended, restated or re-enacted from
time to time.
1.7 SECTION AND SCHEDULE REFERENCES. Unless the context requires otherwise,
references in this Agreement to Sections or Schedules are to Sections or
Schedules of this Agreement. The Schedules to this Agreement are as follows:
SCHEDULES
---------
Schedule 5.1(i) - Financial Statements of Schelfhout
Schedule 5.1(l) - Real Property
Schedule 5.1(n) - Insurance
Schedule 5.1(o) - Material Contracts
Schedule 5.1(p) - List of Receivables
Schedule 5.1(q) - Intellectual Property
Schedule 5.1(y)(i) - Employees
Schedule 5.1(y)(vii) - Benefit Plan
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ARTICLE 2
PURCHASE OF SHARES
2.1 AGREEMENT TO PURCHASE AND SELL. At the Closing Time, subject to the
terms and conditions hereof, the Vendors shall sell to the Purchaser and the
Purchaser shall purchase from the Vendors, the Shares.
2.2 AMOUNT OF PURCHASE PRICE. The purchase price (the "Purchase Price")
payable by the Purchaser to the Vendors for the Shares shall be the sum of
ten million dollars (US$10,000,000) in United States funds.
2.3 DEPOSIT. The Vendors acknowledge and agree that the Purchaser has
already deposited the sum of one million dollars (US$1,000,000) in United
States funds in trust with X. Xxxxxxxxxx and H. De Laet (the "Deposit"),
which Deposit shall be applied towards the payment of the Purchase Price.
2.4 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid and
satisfied by the Purchaser to the Vendors as follows:
(a) at the Closing Time, the Deposit shall be paid to the Vendors,
on a Pro-Rata Basis, by X. Xxxxxxxxxx and H. De Laet and
credited against the Purchase Price;
(b) at the Closing Time, by delivery to the Vendors, on a Pro-Rata
basis, of an aggregate of three million dollars (US$3,000,000)
in United States funds; and
(c) at the Closing Time, by delivery to the Vendors, on a Pro-Rata
Basis, of an aggregate of 3,636,364 common shares in the
capital of e-Auction, which shares shall at the Closing Time
have an aggregate value of six million dollars (US$6,000,000)
in United States funds, and a per share value equal to US$1.65
("Initial Share Value"), subject to the terms and conditions
contained in Section 2.5 below.
2.5 e-AUCTION SHARES. The Vendors agree not to sell, transfer, convey or
dispose ("Sell") of any of the e-Auction Shares delivered to the Vendors
pursuant to Section 2.4(c) above except on the following basis:
(a) the Vendors shall not Sell any of the e-Auction Shares until
the date which is six (6) months after the Closing Date, and
following such date the Vendors shall only be entitled to sell
their Pro-rata Share of such number of e-Auction Shares having
an aggregate value, calculated on the basis of a per share
value equal to the Initial Share Value, of seven hundred and
fifty thousand dollars (US$750,000) in United States funds
(454,545 common shares in the aggregate), on each of the six
(6) month, twelve (12) month, eighteen (18) month and twenty
four (24) month anniversary of the Closing Date; and
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(b) the Vendors shall be entitled to Sell their Pro-rata Share of
such number of e-Auction Shares having an aggregate value,
calculated on the basis of a per share value equal to the
Initial Share Value, of one million dollars (US$1,000,000) in
United States funds (606,061 common shares in the aggregate),
on each of the thirty six (36) month, forty-eight (48) month
and sixty (60) month anniversary of the Closing Date.
The Vendors agree to allow a legend to be placed upon the e-Auction
Shares referencing the above restrictions which legend shall remain
until the date which is sixty (60) months following the Closing Date.
2.6 FREELY TRADABLE e-AUCTION SHARES.
(a) Subject to (c) below, in the event that the e-Auction Shares
referred to in Section 2.5(a) above are not freely tradable on any one of the
six (6), twelve (12), eighteen (18) or twenty four (24) month anniversary of the
Closing Date, the Purchaser agrees to pay to the Vendors, by way of electronic
transfer, within ten (10) Business Days after the date of the applicable
anniversary, an amount equal to seven hundred and fifty thousand dollars
(US$750,000) in United States funds.
(b) Subject to (c) below, in the event that the e-Auction Shares
referred to in Section 2.5(b) above are not freely tradable on any one of the
thirty six (36), forty eight (48) or sixty (60) month anniversary of the Closing
Date, the Purchaser agrees to pay to the Vendors, by way of electronic transfer,
within ten (10) Business Days after the date of the applicable anniversary, an
amount equal to one million dollars (US$1,000,000) in United States funds.
(c) Upon any payment by the Purchaser pursuant to Section 2.6 (a) or
Section 2.6(b), the Vendors agree to transfer ownership to the Purchaser, within
ten (10) Business Days after receipt of any payment, such number of e-Auction
Shares equal to the amount paid by the Purchaser to the Vendors, with each share
having a value equal to the Initial Share Value.
(d) As security for the cash payments which may be due to the Vendors
pursuant to (a) or (b) above, the Purchaser agrees to pledge a portion of the
Shares pursuant to the terms of the pledge agreement referred to in section
4.3(h) below. In the event that the Purchaser fails to make a payment referred
to above in (a) or (b), the Vendors shall be entitled to be transferred from the
Purchaser the portion of the Shares which are used to secure the applicable
amount as their sole and exclusive remedy all in accordance with the terms of
the pledge agreement referred ot in section 4.3(h) below.
2.7 GUARANTEE. e-Auction unconditionally and irrevocably guarantees the
prompt payment to the Vendors of all the indebtedness, liabilities and
obligations of any kind whatsoever which the Purchaser is under an obligation
to pay to the Vendors pursuant to Sections 2.4 and 2.6 above.
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ARTICLE 3
CLOSING ARRANGEMENTS
3.1 CLOSING. The Closing shall take place at 2:00 p.m. (the "Closing
Time") on the Closing Date at the offices of the auditor of Schelfhout,
Gislenus Bats & Co. b.v.b.a., located at Xxxxxxxx-Xxxx 0, X-0000
Xxxx-Xxxxxxx, Xxxxxxx, or at such other time or place as may be agreed upon
orally or in writing by the parties to this Agreement.
3.2 VENDORS' CLOSING DELIVERIES. At the Closing Time, the Vendors shall
deliver or cause to be delivered to the Purchaser the following:
(a) the certificate of registration of the Purchaser in the
register of shareholders of Schelfhout as owner of the Shares;
(b) a certified copy of a resolution of the board of directors of
Schelfhout authorizing the transfer of the Shares from the
Vendors to the Purchaser;
(c) a certificate executed by each of the Vendors certifying that
the representations, warranties and covenants in Section 5.1
are true and correct as at the Closing;
(d) a release of all claims against Schelfhout in favour of the
Purchaser and Schelfhout in the form attached hereto as
Schedule 3.2(e), duly executed by each of the Vendors; and
(e) all such other assurances, consents, agreements, documents and
instruments as may be reasonably required by the Purchaser to
complete the transactions provided for in this Agreement.
3.3 PURCHASER'S CLOSING DELIVERIES. At the Closing, the Purchaser shall
deliver or cause to be delivered to the Vendors the following:
(a) the payments referred to in Sections 2.4 above;
(b) the certificate or certificates representing the e-Auction
Shares, duly registered in the names of each Vendor, on a
Pro-rata Basis;
(c) a certificate executed by the Purchaser certifying that the
representations, warranties and covenants in Section 5.2 are
true and correct as at the Closing;
(d) evidence in a form satisfactory to the Vendors, acting
reasonably, that the Purchaser was incorporated and acquired
legal status and that the person signing on the Purchaser's
behalf has the power to represent the Purchaser; and
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(e) all such other assurances, consents, agreements, documents and
instruments as may be reasonably required by the Vendors to
complete the transactions provided for in this Agreement.
3.4 POST CLOSING DELIVERIES. Within fifteen (15) Business Days following
the Closing Date, the Vendors shall deliver or cause to be delivered to the
Purchaser the following:
(a) copies of any applicable schedule referenced in this Agreement
which the Vendors are unable to deliver to the Purchaser on
the Closing Date; and
(b) legal opinion of the Vendors' solicitors (lawyers) addressed
to the Purchaser and the Purchaser's solicitors (lawyers) in a
form satisfactory to the Purchaser acting reasonably.
ARTICLE 4
CONDITIONS OF CLOSING
4.1 PURCHASER'S CONDITIONS. The Purchaser shall not be obliged to
complete the purchase and sale of the Shares pursuant to this Agreement
unless, at or before the Closing Time, each of the following conditions have
been satisfied, it being understood that the following conditions are
included for the exclusive benefit of the Purchaser and may be waived, in
whole or in part, in writing by the Purchaser at any time; and each of the
Vendors hereby, jointly and severally, covenant and agree with the Purchaser
to take all such actions, steps and proceedings as are reasonably within
their control as may be necessary to ensure that the following conditions are
fulfilled at or before the Closing Time:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations,
warranties and covenants of the Vendors in Section 5.1 shall be true and correct
at the Closing Time.
(b) VENDORS' COMPLIANCE. The Vendors shall have performed and complied
with, or caused to be performed or complied with, all of the terms and
conditions in this Agreement on their part to be performed or complied with at
or before Closing Time and shall have executed and delivered or caused to have
been executed and delivered to the Purchaser at the Closing Time all the
documents contemplated in Section 3.2 or elsewhere in this Agreement.
(c) GOOD TITLE. The Vendors shall have good and marketable title to the
Shares, free and clear of any and all Liens of any kind and nature whatsoever.
(d) MATERIAL ADVERSE CHANGE. During the Interim Period, there shall
have been no Material Adverse Change.
(e) CONSENTS AND APPROVALS. All the Consents and Approvals have been
obtained.
(f) NO LITIGATION. Except as set out below, there shall be no
litigation or proceedings:
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(i) pending or threatened against any of the Vendors or
against Schelfhout or any of its directors or
officers, for the purpose of enjoining, preventing or
restraining the completion of the transactions
contemplated by this Agreement; and
(ii) pending or threatened against any of the Vendors or
against Schelfhout or any of its directors or
officers which:
(1) if decided adversely, could adversely affect
the right of the Purchaser to acquire or
retain the Shares; or
(2) in the judgement of the Purchaser, acting
reasonably, would make the completion of the
transactions contemplated by this Agreement
inadvisable;
except for (i) Xxxxxxx x. Xxxxxxxxxx which is presently under
appeal, in which the French Court ordered Schelfhout and the
Chamber of Commerce of Cherbourg on November 6, 1998 to pay
damages to Xxxxxxx in the amount of FRF200.000; and
(ii)Xxxxxxx x. Xxxxxxxxxx (II): in this case, Xxxxxxx has
withdrawn its suit and the Court of Rennes (France) condemned
Xxxxxxx to pay the costs of the procedure and (iii) XXXX 0
XXXXXXX N.V., in which XXXX 0 XXXXXXX X.X. lodged on May 12,
1998 an appeal against the judgement of the Commercial Court
of Dendermonde, division of Sint-Niklaas, of 28.04.1998 and
lodged a counterclaim as follows:
- payment of invoice nr. 97 0335 of 6.6.97 ad
247,953 BEF;
- the cancellation of the contract at the
charge of Schelfhout;
- the restitution of the software, manual and
demonstration version;
- damages of 1,000,000 BEF.
4.2 CONDITION NOT FULFILLED. If any condition in Section 4.1 has not
been fulfilled at or before the Closing Time, then the Purchaser in its sole
discretion may, without limiting any rights or remedies available to the
Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Vendors, in which
event the Purchaser shall be released from its obligations
under this Agreement to complete the purchase of the Shares;
or
(b) waive compliance with any such condition in whole or in part
without prejudice to its right of termination in the event of
non-fulfilment of any other condition in whole or in part.
4.3 VENDORS' CONDITIONS. The Vendors shall not be obliged to complete
the purchase and sale of the shares pursuant to this Agreement and to
complete the transactions contemplated by this Agreement unless, at or before
the Closing Time each of the following conditions have been satisfied, it
being understood that the following conditions are included for the exclusive
benefit
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of the Vendors, and may be waived, in whole or in part, in writing by the
Vendors at any time; and the Purchaser hereby covenants and agrees with the
Vendors to take all such actions, steps and proceedings as are reasonably
within the Purchaser's control as may be necessary to ensure that the
following conditions are fulfilled at or before the Closing Time:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations,
warranties and covenants of the Purchaser in Section 5.2 shall be true and
correct at the Closing Time.
(b) PURCHASER'S COMPLIANCE. The Purchaser shall have performed and
complied with all of the terms and conditions in this Agreement on its part to
be performed or complied with at or before the Closing Time and shall have
executed and delivered or caused to have been executed and delivered to the
Vendors at the Closing Time all the documents contemplated in Section 3.3 or
elsewhere in this Agreement.
(c) GOOD TITLE. The Purchaser shall have good and marketable title to
the e-Auction Shares, free and clear of any and all Liens of any kind and nature
whatsoever.
(d) MATERIAL ADVERSE CHANGE. During the Interim Period, there shall
have been no Material Adverse Change in the business and assets of e-Auction.
(e) NO LITIGATION. There shall be no litigation or proceedings pending
or threatened against e-Auction or the Purchaser or any of its directors and
officers which, in the judgement of the Vendors, acting reasonably, would make
the completing of the transactions contemplated by this Agreement inadvisable.
(f) INCORPORATION OF THE PURCHASER. The Purchaser shall have been
incorporated and shall have acquired legal status.
(g) CONTRIBUTION IN KIND AND CAPITAL DECREASE. Schelfhout shall have
decreased its capital for the amount of 15,864,040 BEF.
(h) PLEDGE AGREEMENT. The Purchaser shall have completed a pledge
agreement with the Vendors, by which the Shares are pledged to the Vendors, and
shall have been registered the pledge in the shareholders register.
(i) LEASE. Schelfhout shall have taken the commitment to rent the
premises where Schelfhout currently operates and carries on business at a rate
of 2,400 BEF/m2 for office space, 1,800 BEF/m2 for the work room and 1,200
BEF/m2 for the warehouse, for a term of ten years, on terms and conditions which
shall correspond to the normal commercial terms and conditions at that moment.
4.4 CONDITION NOT FULFILLED. If any condition in Section 4.3 shall not
have been fulfilled at or before the Closing Time, then the Vendors, in their
sole discretion may, without limiting any rights or remedies available to the
Vendors at law or in equity, either:
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(a) terminate this Agreement by notice to the Purchaser in which
event the Vendors shall be released from all obligations under
this Agreement to complete the sale of the Shares; or
(b) waive compliance with any such condition in whole or in part
without prejudice to its right of termination in the event of
non-fulfilment of any other condition in whole or in part.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE VENDORS. As a
material inducement to the Purchaser entering into this Agreement and
completing the transactions contemplated by this Agreement and acknowledging
that the Purchaser is entering into this Agreement in reliance upon the
representations, warranties and covenants of the Vendors, the Vendors hereby,
jointly and severally, represent, warrant and covenant to and with the
Purchaser as follows:
(a) OWNERSHIP OF SHARES. The Vendors are, and at the Closing Time will
be, the registered and beneficial owners of the Shares, with good and marketable
title thereto, free and clear of all Liens of any kind and nature whatsoever. No
Person, other than the Purchaser, has any agreement, option, right or privilege
of any kind capable of becoming an agreement for the purchase from the Vendors
of any of the Shares.
(b) ENFORCEABILITY OF OBLIGATIONS. This Agreement constitutes a valid
and binding obligation of each of the Vendors enforceable against each of them
in accordance with its terms, subject however, to limitations with respect to
enforcement imposed by law in connection with bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally and to the
extent that equitable remedies such as specific performance and injunction are
only available in the discretion of the court from which they are sought.
(c) AUTHORIZATION BY THE VENDORS. Each of the Vendors has the legal
capacity to enter into this Agreement and all other agreements and instruments
to be executed by any of them as contemplated by this Agreement and to carry out
their respective obligations under this Agreement and such other agreements and
instruments and the Vendors have the exclusive right, power and authority to
sell the Shares in accordance with the terms of this Agreement.
(d) BANKRUPTCY. Neither Schelfhout nor any Vendor has committed an act
of bankruptcy (within the meaning of the BANKRUPTCY AND INSOLVENCY ACT (Canada)
or similar laws of any other jurisdiction) nor made an assignment in favour of
its creditors nor made a proposal in bankruptcy to its creditors or any class
thereof nor had any petition for a receiving order presented in respect of it.
Neither Schelfhout nor any Vendor has initiated proceedings with respect to a
compromise or arrangement with its creditors nor initiated any proceedings for
its winding up, liquidation or dissolution. No receiver has been appointed in
respect of Schelfhout
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or any Vendor or any of the Assets or Shares and no execution or distress has
been levied upon any of the Assets or Shares.
(e) INCORPORATION AND POWER. Schelfhout is a corporation duly
incorporated, organized, validly subsisting and in good standing under the laws
of Belgium. Schelfhout is duly licensed, registered and qualified to do business
and is in good standing under the laws of Belgium. Schelfhout has the full
corporate power and authority to carry on the Business and to own, lease and
operate the Assets and the Business as now carried on and owned, leased and
operated by it.
(f) SHARE CAPITAL. The authorized capital of Schelfhout consists of 640
shares and there are 640 shares issued and outstanding. Schelfhout does not have
a stock option plan and there are no outstanding securities convertible into or
exchangeable for any shares of capital stock or any rights (either pre-emptive
or other) to subscribe for or to purchase, or any options, rights or warrants
for the purchase of, or any agreements providing for the issuance of, or any
calls, commitments, agreements or claims of any character relating to the
issuance of, any securities in the capital of Schelfhout, except for the usual
preferential rights for the existing shareholders of Schelfhout in the case of
capital increases as provided for in Article 7 of the articles of incorporation
of Schelfhout.
(g) TITLE TO ASSETS. Schelfhout has good and marketable title to all
the Assets, free and clear of any and all Liens. All machines, machinery,
equipment, tools or other moveable or mechanical property forming part of the
Assets are in good operating condition and are in a state of good repair and
maintenance, reasonable wear and tear excepted. The Assets are sufficient to
permit the continued operation of the Business in substantially the same manner
as now being conducted. There is no agreement, option or other right or
privilege outstanding in favour of any Person for the purchase from Schelfhout
of the Business or of any of the Assets out of the ordinary course of Business.
(h) NO SUBSIDIARY. Schelfhout has no subsidiaries or agreements of any
nature to acquire any subsidiary or to acquire or lease any other business
operations, except for the shares in the company into which the buildings were
contributed.
(i) FINANCIAL STATEMENTS. The Purchaser has been furnished with the
financial statements of Schelfhout for the 1996, 1997 and 1998 fiscal years
ending December 31, (the "Financial Statements") prepared in accordance with
Belgium generally accepted accounting principles (GAAP), copies of which are
attached hereto as Schedule 5.1(i). The balance sheets contained in such
Financial Statements fairly present in all material respects the financial
position of Schelfhout as of its date and the statements of earnings and
retained earnings contained in the Financial Statements fairly present in all
material respects the results of operations for the period indicated. Since
December 31, 1998, Schelfhout has carried on its business in the ordinary course
and there has been no Material Adverse Change in the Business, financial
condition, Assets, results of operations or prospects of Schelfhout, except for
the contribution in kind of the building.
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(j) CORPORATE RECORDS. The minute books of Schelfhout contain
true, correct and complete copies of its articles, its by-laws, the minutes
of every meeting of its board of directors and every committee thereof and of
its shareholders and every written resolution of its directors and
shareholders. The register of shareholders of Schelfhout is complete and
accurate in all material respects.
(k) PERSONAL PROPERTY. All Personal Property is in good operating
condition, and repair, ordinary wear and tear excepted.
(l) REAL PROPERTY. Schedule 5.1(l) lists the municipal address
for and a general description of each parcel of land owned, leased or used in
the Business. The Real Property and the current use thereof comply with
Applicable Law. No notice of violation of any Applicable Law or of any
covenant, restriction or easement affecting the Real Property or with respect
to the use or occupancy of the Real Property, has been given by any
governmental authority having jurisdiction over the Real Property or by any
other Person entitled to enforce the same.
(m) PERSONAL PROPERTY LEASES. Each Personal Property Lease is in
full force and effect and has not been amended, and Schelfhout is entitled to
the full benefit and advantage of each Personal Property Lease in accordance
with its terms. Each Personal Property Lease used in the Business is in good
standing and there has not been any default by any party under any Personal
Property Lease nor any dispute between Schelfhout and any other party under
any Personal Property Lease.
(n) INSURANCE. The Business, properties and Assets of Schelfhout
are insured for the benefit of Schelfhout in amounts deemed adequate by
Schelfhout's management against risk usually insured against by Persons
operating a business similar to the Business of Schelfhout in the localities
where such properties are located. Particulars of the policies of insurance
maintained by Schelfhout as at the Closing Date are set out in Schedule
5.1(n) hereto. All policies are in full force and effect and Schelfhout is
not in default, whether as to payment of premiums or otherwise, under the
terms of such policies.
(o) MATERIAL CONTRACTS. Schedule 5.1(o) lists all the Material
Contracts. Schelfhout is not in default under any Material Contract and
neither Schelfhout nor the Vendors have received notice of a default and
there has not occurred any event which, with the lapse of time or giving of
notice or both, would constitute a default under any Material Contract by
Schelfhout or any other party to the Material Contract. Each Material
Contract is in full force and effect, unamended by written or oral agreement,
and Schelfhout is entitled to the full benefit and advantage of each Material
Contract in accordance with its terms. Each Material Contract is in good
standing and there has not been any default by any party under any Material
Contract nor any dispute between Schelfhout and any other party under any
Material Contract, except for the Material Contract with GPLM (Groupement des
Producteurs de Legumees de la Manche, S.C. AGRICOLE) (France) of April 3,
1996. Parties entered into a formal serrement agreement on December 18, 1999.
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(p) RECEIVABLES. Schedule 5.1(p) lists all of the Receivables as
at the Closing Date. The Receivables are valid obligations which arose in the
ordinary course of business and are enforceable and fully collectable
accounts not subject to any setoff or counterclaim. None of the Receivables
are due from a Person with whom Schelfhout does not deal at arm's length.
(q) INTELLECTUAL PROPERTY.
(i) Schedule 5.1(q)(i) lists the Intellectual Property
for products developed by Schelfhout. The
Intellectual Property, and all registrations of the
Intellectual Property, are valid and subsisting. All
of the registrations and applications for
registration of the Intellectual Property are in good
standing and are recorded in the name of Schelfhout.
No application for registration of any of the
Intellectual Property has been rejected.
(ii) Schelfhout is the first and only owner of the
Intellectual Property and is entitled to the
uninterrupted use of the Intellectual Property
without payment of any royalty or other fees. No
Person has any right, title or interest in any of the
Intellectual Property and all such persons have
waived their moral rights in any copyright works
within the Intellectual Property. Schelfhout has
diligently protected its legal rights to the
exclusive use of the Intellectual Property.
(iii) There is no current litigation pending or threatened
against or relating to the Intellectual Property.
(iv) Schelfhout has not permitted or licensed any Person
to use any of the Intellectual Property, except for
Schelfhout's customers.
(v) No Person has challenged the validity of any
registrations for the Intellectual Property or the
rights of Schelfhout to any of the Intellectual
Property, except for the litigation Xxxxxxx x.
Xxxxxxxxxx XX in which Xxxxxxx finally has withdrawn
its suit (art. 4.1 f).
(vi) To the best of the knowledge of the Vendors, neither
the use of the Intellectual Property (which includes
products, processes, methods, substances, parts and
other materials presently sold by or used by
Schelfhout in connection with the Business) nor the
conduct of the Business has infringed or currently
infringes upon the industrial or intellectual
property rights of any other Person.
(vii) To the best of the knowledge of the Vendors, no other
Person has infringed the Schelfhout rights to the
Intellectual Property.
(viii) There is no governmental prohibition or restriction
on the use of the Intellectual Property.
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(r) LICENCES AND PERMITS. Schelfhout is registered with the
Ministry of Finance of Belgium by decision dated January 1, 1990 as a
building contractor under the number 429.285.178.06.26.12. Schelfhout holds
this registration free and clear of any and all Liens. This registration is
in good standing and in full force and effect, Schelfhout is not in violation
of any term or provision or requirement of such registration, and no Person
has threatened to revoke, amend or impose any condition in respect of, or
commenced proceedings to revoke, amend or impose conditions in respect of
this registration. Schelfhout does not hold any Licenses or Permits other
than described in this Section 5.1(r).
(s) UNDISCLOSED LIABILITIES. Schelfhout does not have any other
liabilities, obligations, indebtedness or commitments, whether accrued,
absolute, contingent or otherwise, other than the liabilities which have been
previously disclosed in writing to the Purchaser and which do not exceed in
the aggregate twenty thousand dollars (US$20,000) in United States funds.
(t) CONSENTS AND APPROVALS. No consent or approval of any
Person is required in connection with the execution and delivery of this
Agreement and the completion of the transactions contemplated by this
Agreement or to permit Schelfhout to carry on the Business after the Closing
as the Business is currently carried on by it.
(u) NOTICES. no Notices are required to be delivered to any
Person in connection with the execution and delivery of this Agreement and
the completion of the transactions contemplated by this Agreement or to
permit Schelfhout to carry on the Business after the Closing as the Business
is currently carried on by Schelfhout.
(v) ABSENCE OF CONFLICTING AGREEMENTS. The execution, delivery
and performance of this Agreement by the Vendors and the completion (with any
required Consents and Approvals) of the transactions contemplated by this
Agreement do not and will not result in or constitute any of the following:
(i) a default, breach or violation or an event that, with
notice or lapse of time or both, would be a default,
breach or violation of any of the terms, conditions
or provisions of the articles or by-laws of
Schelfhout;
(ii) an event which, pursuant to the terms of any Material
Contract or Licence and Permit, causes any right or
interest of Schelfhout to come to an end or be
amended in any way that is detrimental to the
Business or entitles any other Person to terminate or
amend any such right or interest;
(iii) the creation or imposition of any Lien on any
Asset; or
(iv) the violation of any Applicable Law by the Vendors or
Schelfhout.
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(w) LITIGATION. There is no action, suit, proceeding, claim,
application, complaint or investigation in any court or before any arbitrator
or before or by any regulatory body or governmental or non-governmental body
pending or threatened by or against the Vendors or Schelfhout, or Related to
the Business or affecting the Business or the operations or capital of
Schelfhout or the transactions contemplated by this Agreement, and there is
no factual or legal basis which could give rise to any such action, suit,
proceeding, claim, application, complaint or investigation except for (i)
Xxxxxxx x. Xxxxxxxxxx which is presently under appeal, in which the French
Court ordered Schelfhout and the Chamber of Commerce of Cherbourg on January
1, 1999 to pay damages to Xxxxxxx in the amount of FRF200.000; and (ii)
Xxxxxxx x. Xxxxxxxxxx (II): in this case, Xxxxxxx has withdrawn its suit and
the Court of Rennes (France) condemned Xxxxxxx to pay the costs of the
procedure and (iii) XXXX 0 XXXXXXX N.V., in which XXXX 0 XXXXXXX X.X. lodged
on May 12, 1998 an appeal against the judgement of the Commercial Court of
Dendermonde, division of Sint-Niklaas, of 28.04.1998 and lodged a
counterclaim as follows:
- payment of invoice nr. 97 0335 of 6.6.97 ad 247,953
BEF;
- the cancellation of the contract at the charge of
Schelfhout;
- the restitution of the software, manual and
demonstration version;
- damages of 1,000,000 BEF.
(x) NO CONFLICT. No current director or officer of Schelfhout
(nor anyone who was a director or officer of Schelfhout in the last fiscal
year) and, to the knowledge of each Vendor, no current shareholder of
Schelfhout, nor any associate of any such Person, is presently, directly or
indirectly through his or her affiliation with any other Person, a party to
any transaction with Schelfhout providing for the furnishing of services by
or to (except services related to such person acting as a director or officer
of Schelfhout), or rental of real or personal property from or to, or
otherwise requiring cash payments to or by any such Person except for (i)
either: an agreement between Infomar C.V.B.A. and Schelfhout for the
furnishing of management, consulting and related services by Infomar C.V.B.A.
or an employment agreement between Xxxxx De Laet and Schelfhout and an
agreement between Infomar C.V.B.A. and Schelfhout for the furnishing of
management, consulting and related services by Infomar C.V.B.A. or an
employment agreement between Xxxxx De Laet and Schelfhout and between Xxx
Xxxxxxxxxx and Xxxxxxxxxx; (ii) the Lease Agreement referred to in Section
5.1(hh), and (iii) the option to acquire the shares in the company into which
the buildings were contributed and (iv) the agreement of September 1, 1998,
between Schelfhout and European Auction Builders c.v.b.a. at present INFOMAR
c.v.b.a. providing the payment by Schelfhout of 90,000 Euro, at the moment
that Schelfhout receives the last payment from the European Community via
XXXX Plc. (which will exceed said 90,000 Euro).
(y) EMPLOYEES.
(i) Schedule 5.1(y)(i), which will be provided to the
Purchaser on the Closing Date, lists all the
Employees and the age, position, status, length of
service, compensation and all other benefits of each
of them,
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respectively. The Purchaser has been provided
with the opportunity to review all contracts or
arrangements with or relating to any Employee and
will be provided with copies of such contracts or
arrangements on the Closing Date. All Employees
have written employment agreements.
(ii) There is no labour strike, dispute, slowdown or
stoppage actually pending or involving or, to the
best of the knowledge of each Vendor, threatened
against Schelfhout with respect to the Business;
(iii) No union representation question exists respecting
the Employees in connection with the Business and no
collective bargaining agreement is in place or
currently being negotiated by Schelfhout;
(iv) Other than as set out in their written contracts of
employment with Schelfhout, no Employee has any
agreement as to length of notice required to
terminate his or her employment;
(v) All required withholding of amounts from the
employees have been paid to the appropriate authority
in compliance with Applicable Law.
(vi) No notice has been received by Schelfhout or any
Vendor of any complaint which has not been resolved,
filed by any of its employees claiming that
Schelfhout has violated any applicable employee or
human rights or similar legislation in any
jurisdictions in which Schelfhout operates), or of
any complaints or proceedings which have not been
resolved of any kind involving Schelfhout or, to the
Vendors' knowledge, after due inquiry, any of the
Employees before any labour relations board. There
are no outstanding orders or charges against
Schelfhout under any applicable health and safety
legislation in any jurisdictions in which Schelfhout
carries on business). All levies, assessments and
penalties made against Schelfhout pursuant to the
workers' compensation legislation in the
jurisdictions in which Schelfhout carries on business
have been paid by Schelfhout and Schelfhout has not
been reassessed under any such legislation except
such as have been resolved.
(vii) The only benefit plans of Schelfhout (the "Benefit
Plans") are listed in Schedule 5.1(y)(vii) hereto.
All contributions or premiums required to be made by
Schelfhout under the terms of the Benefit Plans have
been made. Schelfhout may terminate the Benefit
Plans. Schelfhout has furnished to the Purchaser all
related documentation and plan summaries, booklets
and personal manuals related to the Benefit Plans. No
material changes have occurred to the Benefit Plans
or are expected to occur which would affect the
actuarial reports or financial statements provided to
the Purchaser, except for the hospitalisation and
group insurance which will be introduced by
Schelfhout on or about January 1, 1999 as far as the
group
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insurance is concerned for two of the employees and
January 1, 2000 as far as hospitalisation is
concerned.
(z) Intentionally omitted.
(aa) CUSTOMERS. None of the Vendors is aware of, nor has any of
them received notice of, any intention on the part of any such customer to
cease doing business with Schelfhout or to modify or change in any material
manner any existing arrangement with Schelfhout for the purchase of any
products or services. The relationships of Schelfhout with each of their
respective principal customers are satisfactory, and there are no unresolved
disputes with any such customer.
(bb) AFFILIATED TRANSACTIONS. Schelfhout is not liable in
respect of advances, loans, guarantees to or on behalf of any shareholder,
officer, director, employee or any other Person with whom Schelfhout does not
deal at arm's length.
(cc) TAXES. Schelfhout has filed with appropriate taxing
authorities on a timely basis all returns, reports and estimates relating to
Taxes which are required to be filed by or on behalf of Schelfhout to the
date hereof, and each such return, report and estimate is complete and
accurate in all material respects. Schelfhout has paid, or made adequate
provision in accordance with generally accepted accounting principles for the
payment of, all Taxes which are shown to be due on such returns, reports or
estimates. There are no current assessments, liens or claims issued by any
taxing authority regarding any Taxes of Schelfhout. All assessments of Taxes
with respect to Schelfhout have either been paid or provided for or are being
contested in good faith by appropriate proceedings as to which adequate
reserves have been provided. No action, proceeding or investigation has been
threatened by any governmental authority for the assessment or collection of
any Taxes for which Schelfhout would be liable.
(dd) ACTION DURING INTERIM PERIOD. During the Interim Period,
Schelfhout has not:
(i) made or agreed to make any change in the compensation
of any director, officer or Employee, except for the
normal increases which are necessary in the Business
to retain Employees, and has not paid or agreed to
pay or set aside any bonus, profit sharing,
retirement, insurance, death, severance, fringe
benefit, or other extraordinary or indirect
compensation to, for, or on behalf of any director,
officer or Employee, except for the hospitalisation
and group insurance for Employees which will be
introduced by Schelfhout on or about January 1, 1999
as far as the group insurance is concerned for two of
the employees and January 1, 2000 as far as
hospitalisation is concerned;
(ii) suffered any Material Adverse Change;
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(iii) declared or made any payment of any dividend or other
distribution in respect of its shares and has not
redeemed, purchased or otherwise acquired any shares;
(iv) issued or sold any shares or other securities or
issued, sold or granted any option, warranty or right
to purchase any shares or other securities of
Schelfhout or its Affiliates;
(v) sold, assigned, transferred, mortgaged, pledged,
granted a security interest in or otherwise
encumbered any of the Assets except sales of
Inventories in the normal course of business which,
individually and in the aggregate are not material to
the financial condition of the operation of the
Business, except for the contribution by Schelfhout
of the building according to Section 4.3(g) and
except for the granting of an irrevocable option on
the shares in the company into which the buildings
were contributed;
(vi) changed any accounting or costing systems or methods
in any material respect;
(vii) suffered any extraordinary loss or cancelled or
waived any debt, claim or other right;
(viii) incurred or assumed any liabilities, obligations or
indebtedness (whether accrued, absolute, contingent
or otherwise), except unsecured current liabilities,
obligations and indebtedness incurred in the normal
course of business;
(ix) entered into any Material Contract or any other
transaction that was not in the normal course of
business; or
(x) terminated, cancelled or modified in any material
respect or received notice or a request for
termination, cancellation or modification in any
material respect of any Material Contract, including
any policy of insurance which related to Schelfhout
or any of the Assets, except for the maintenance
contract with Socave-Vergt which was terminated on
August 17, 1999.
(ee) DIRECTORS AND OFFICERS. At the request of the Purchaser any
time on or following the Closing Date, the Vendors shall cause their nominees
on the board of directors of Schelfhout to tender resignations.
(ff) E-AUCTION SHARES. The Vendors acknowledge that:
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(i) the e-Auction Shares were issued in accordance with
Rule 144 pursuant to the UNITED STATES SECURITIES ACT
of 1933 (the "1933 Act") and are known as restricted
shares;
(ii) the Vendors may only make offers or sales of the
e-Auction Shares to non-U.S. Persons outside the
United States pursuant to Rule 904 of Regulation S of
the 1933 Act. The Vendors may offer or sell the
e-Auction Shares only: outside the United States in
accordance with the provisions of Rule 904 of
Regulation S; pursuant to registration of the
e-Auction Shares under the 1933 Act; or in the United
States pursuant to an available exemption from the
registration requirements of the 1933 Act. Such an
exemption would be available for persons who are not
Underwriters, Distributors or Affiliates of
e-Auction. The foregoing is only a summary of the
applicable United States securities laws and
regulations governing the resale of the e-Auction
Shares within the United States. The determination of
the status of the Vendors for such purpose and the
availability of any exemption from registration will
depend on the prevailing facts and circumstances.
Accordingly, the Vendors should consult appropriate
United States counsel prior to any resale of the
e-Auction Shares within the United States;
(iii) the e-Auction Shares acquired pursuant to this
Agreement may be resold in other jurisdictions not
listed above only in accordance with applicable
securities laws in effect in that jurisdiction;
(iv) upon the original issuance thereof, and until such
time as the same is no longer required under
applicable requirements of the 1933 Act or applicable
state laws, the certificates representing the
e-Auction Shares sold in the United States, and all
certificates issued in exchange therefor or in
substitution thereof, shall bear the following
legend:
"No sale, offer to sale, or transfer of the
shares represented by this certificate shall
be made unless a registration statement
under the FEDERAL SECURITIES ACT of 1993, as
amended, with respect to such shares is then
in effect or an exemption from the
registration requirements of said Act is
then in fact applicable to said shares."
(v) pursuant to applicable securities legislation it may
be necessary to place a legend, different or in
addition to the one listed in paragraph 5.1(ff)(vi)
above, relating to resale restrictions on the
certificates representing the e-Auction Shares
purchased hereunder and to the extent that such is
required by applicable securities legislation, and
the Vendors consent to the same.
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(gg) FULL DISCLOSURE. None of the foregoing representations and
warranties and no document furnished by or on behalf of Schelfhout and the
Vendors to the Purchaser in connection with the negotiation of the
transactions contemplated by this Agreement contain any untrue statement of a
material fact or omit to state any material fact necessary to make any such
statement or representation not misleading to a prospective purchaser of the
Shares seeking full information as to Schelfhout and its respective
properties, businesses and affairs. Except for those matters disclosed in
this Agreement, there are no facts not disclosed in this Agreement which, if
learned by the Purchaser, might reasonably be expected to materially diminish
its evaluation of the value of the Shares and the Business or to deter the
Purchaser from completing the transactions contemplated by this Agreement on
the terms of this Agreement.
(hh) LEASE. The Vendors acknowledge and agree that Schelfhout
shall be entitled to remain on the premises where Schelfhout currently
operates and carries on business for a period of twelve (12) months following
the Closing Date on a rent free basis and that following such twelve (12)
month period, the Vendors or the company into which the building were
contributed shall lease the building to Schelfhout at a rate of 2,400 BEF per
square metre for office space, 1,800 BEF per square metre for the work room
and 1,200 per square metre for the warehouse, for a term of 10 years (the
"Lease Agreement"), which terms of the lease can be considered as normal at
the Closing Date.
5.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND E-AUCTION. As a
material inducement to the Vendors entering into this Agreement and
completing the transactions contemplated by this Agreement and acknowledging
that the Vendors are entering into this Agreement in reliance upon the
representations, warranties and covenants of the Purchaser and e-Auction, the
Purchaser and e-Auction hereby represents, warrants and covenants to the
Vendors as follows:
(a) INCORPORATION. The Purchaser is a corporation duly
incorporated and validly subsisting and in good standing under the laws of
Belgium.
(b) DUE AUTHORIZATION. The Purchaser has all necessary corporate
power, authority and capacity to enter into, execute and deliver this
Agreement and all other agreements and instruments required to be delivered
hereunder and to perform its obligations hereunder and under such other
agreements and instruments. The execution and delivery by the Purchaser of
this Agreement and such other agreements and instruments to be delivered
hereunder, and the completion of the transactions contemplated by this
Agreement and under such other agreements and instruments have been duly
authorized and approved by all necessary corporate action on the part of the
Purchaser.
(c) ENFORCEABILITY OF OBLIGATIONS. This Agreement constitutes a
valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms subject, however, to limitations on
enforcement imposed by bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights generally and to the extent that equitable
remedies such as specific performance and injunctions are only available in
the discretion of the court from which they are sought.
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(d) OWNERSHIP OF SHARES. The Purchasers at the Closing Time will
be the registered and beneficial owners of the e-Auction Shares, with good
and marketable title thereto, free and clear of all Liens of any kind and
nature whatsoever. No Person, other than the Purchaser, has any agreement,
option, right or privilege of any kind capable of becoming an agreement for
the purchase from the Purchaser of any of the e-Auction Shares.
(e) BANKRUPTCY. The Purchaser and e-Auction has not committed an
act of bankruptcy (within the meaning of the BANKRUPTCY AND INSOLVENCY ACT
(Canada) or similar laws of any other jurisdiction) nor made an assignment in
favour of its creditors nor made a proposal in bankruptcy to its creditors or
any class thereof nor had any petition for a receiving order presented in
respect of it. The Purchaser and e-Auction has not initiated proceedings with
respect to a compromise or arrangement with its creditors nor initiated any
proceedings for its winding up, liquidation or dissolution. No receiver has
been appointed in respect of the Purchaser and e-Auction or any of the assets
or shares of the Purchaser or e-Auction and no execution or distress has been
levied upon any of the assets or shares.
(f) LITIGATION. There is no action, suit, proceeding, claim,
application, complaint or investigation in any court or before any arbitrator
or before or by any regulatory body or governmental or non-governmental body
pending or threatened by or against the Purchaser or e-Auction, related to
its business or affecting the business or the operations or capital of the
Purchaser or e-Auction or the transactions contemplated by this Agreement,
and there is no factual or legal basis which could give rise to any such
action, suit, proceeding, claim, application, complaint or investigation.
(g) CORPORATE RECORDS. The minute books of the Purchaser contain
true, correct and complete copies of its articles, its by-laws, the minutes
of every meeting of its board of directors and every committee thereof and of
its shareholders and every written resolution of its directors and
shareholders. The share certificate book, register of shareholders, register
of transfers and register of directors and officers of the Purchaser are
complete and accurate in all material respects.
(h) FULL DISCLOSURE. None of the foregoing representations and
warranties and no document furnished by or on behalf of the Purchaser and
e-Auction in connection with the negotiation of the transactions contemplated
by this Agreement contain any untrue statement of a material fact or omit to
state any material fact necessary to make any such statement or
representation not misleading to the Vendors seeking full information as to
e-Auction and its respective properties, businesses and affairs. Except for
those matters disclosed in this Agreement, there are no facts not disclosed
in this Agreement which, if learned by the Vendors, might reasonably be
expected to deter the Vendors from completing the transactions contemplated
by this Agreement on the terms of this Agreement.
(i) NO TRANSFER OF SHARES. The Purchaser shall not, during a
period of thirteen (13) months following the Closing Date, transfer any or
all of the Shares in any way whatsoever which would make article 90, 9e and
94 of the Belgium Income Tax Code applicable. The
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Purchaser shall be accountable for any breach of this covenant, whether by
the Purchaser itself, one of its assigns, successors or creditors.
(j) CONTRIBUTION IN KIND The Purchaser and e-Auction acknowledge
and agree that Schelfhout shall contribute the buildings of Schelfhout into
S.D.L. INVEST N.V., a company to be incorporated, for their bookkeeping value
as per 31.12.99, i.e. 19,503,468 BEF. As compensation, S.D.L. INVEST N.V.
will take over the balance of the debt related to the buildings (4,214,646
BEF) and receive shares in S.D.L. INVEST N.V. for 15,288,822 BEF.
5.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) The representations and warranties of the Vendors contained
in this Agreement or contained in any agreement, certificate or other
document delivered or given pursuant to or in connection with this Agreement
or the transactions provided for herein shall survive the Closing, and
regardless of any investigation by or on behalf of the Purchaser with respect
thereto, shall continue in full force and effect for the benefit of the
Purchaser for a period of two (2) years from the Closing Date.
(b) The representations and warranties of the Purchaser and
e-Auction contained in this Agreement or contained in any agreement,
certificate or document delivered or given pursuant to or in connection with
this Agreement or the transactions provided for herein shall survive the
Closing, and regardless of any investigation by or on behalf of the Vendors
with respect thereto, shall continue in full force and effect for the benefit
of the Vendors for a period of two (2) years from the Closing Date.
ARTICLE 6
INDEMNIFICATION
6.1 INDEMNITY BY THE VENDORS. The Vendors shall, jointly and severally,
indemnify and hold the Purchaser and e-Auction, its directors, officers,
employees, agents, representatives, assigns and the Purchaser's Affiliates,
and their respective directors, officers and employees harmless in respect of
any claim, demand, action, cause of action, damage, loss, cost, liability or
expense (hereinafter referred to as "Claim") which may be made or brought
against an Indemnified Party or which it may suffer or incur directly or
indirectly as a result of, in respect of or arising out of:
(a) any incorrectness in or breach of any representation or
warranty of the Vendors contained in this Agreement or in any
other agreement, certificate or instrument executed and
delivered pursuant to this Agreement; or
(b) any breach of or any non-fulfillment of any covenant or
agreement on the part of the Vendors under this Agreement or
under any other agreement, certificate or instrument executed
and delivered pursuant to this Agreement;
6.2 INDEMNITY BY THE PURCHASER AND E-AUCTION. The Purchaser and
e-Auction shall indemnify and hold the Vendors and their respective heirs and
legal representatives harmless in
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respect of any Claim which may be made or brought against an Indemnified
Party or which it may suffer or incur directly or indirectly as a result of
in respect of or arising out of:
(a) any incorrectness in or breach of any representation or
warranty of the Purchaser or e-Auction, contained in this
Agreement or in any other agreement, certificate or instrument
executed and delivered pursuant to this Agreement;
(b) any breach of or any non-fulfillment of any covenant or
agreement on the part of the Purchaser or e-Auction under this
Agreement or under any other agreement, certificate or
instrument executed and delivered pursuant to this Agreement;
or
(c) in the event of a breach of Section 5.2(i) above, the
Purchaser and e-Auction, their assigns and creditors, agree to
pay to the Vendors ispo jure, an indemnity equal to the taxes
to be paid by the Vendors, including any and all fines,
interest and increases thereof. The Purchaser and e-Auction
agree to pay this indemnity to the Vendors within fourteen
(14) days of the receipt of the copy of the notice of
assessment provided by the Vendors.
6.3 LIMITATIONS. No party shall have any Liability for indemnification
pursuant to Sections 6.1 or 6.2 unless and until the accumulated aggregate
amount of Claims of the Indemnified Party exceeds twenty thousand dollars
(US$20,000) in United States funds, following which all such accumulated
Claims and all further Claims of the Indemnified Party shall be recoverable
as provided in this Agreement.
6.4 NOTICE OF CLAIM. If an Indemnified Party becomes aware of a Claim in
respect of which indemnification is provided for pursuant to either of
Section 6.1 or 6.2, as the case may be, the Indemnified Party shall promptly
give written notice of the Claim to the Indemnifying Party. Such notice shall
specify whether the Claim arises as a result of a claim by a Person against
the Indemnified Party (a "Third Party Claim") or whether the Claim does not
so arise (a "Direct Claim"), and shall also specify with reasonable
particularity (to the extent that the information is available):
(a) the factual basis for the Claim; and
(b) the amount of the Claim, if known.
If, through the fault of the Indemnified Party, the Indemnifying Party does
not receive notice of any Claim in time effectively to contest the
determination of any liability susceptible of being contested, then the
Liability of the Indemnifying Party to the Indemnified Party under this
Article shall be reduced by the amount of any losses incurred by the
Indemnifying Party resulting from the Indemnified Party's failure to give
such notice on a timely basis.
6.5 DIRECT CLAIMS. In the case of a Direct Claim, the Indemnifying Party
shall have sixty (60) days from receipt of notice of the Claim within which
to make such investigation of the Claim as the Indemnifying Party considers
necessary or desirable. For the purpose of such investigation, the
Indemnified Party shall make available to the Indemnifying Party the
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information relied upon by the Indemnified Party to substantiate the Claim,
together with all such other information as the Indemnifying Party may
reasonably request. If both parties agree at or before the expiration of such
sixty (60) day period (or any mutually agreed upon extension thereof) to the
validity and amount of such Claim, the Indemnifying Party shall immediately
pay to the Indemnified Party the full agreed upon amount of the Claim,
failing which the matter shall be referred to binding arbitration in such
manner as the parties may agree or shall be determined by a court of
competent jurisdiction.
6.6 THIRD PARTY CLAIMS. In the case of a Third Party Claim, the
Indemnifying Party shall have the right, at its expense, to participate in or
assume control of the negotiation, settlement or defence of the Claim and, in
such event, the Indemnifying Party shall reimburse the Indemnified Party for
all of the Indemnified Party's out-of-pocket expenses as a result of such
participation or assumption. If the Indemnifying Party elects to assume such
control, the Indemnified Party shall have the right to participate in the
negotiation, settlement or defence of such Third Party Claim and to retain
counsel to act on its behalf, provided that the fees and disbursements of
such counsel shall be paid by the Indemnified Party unless the Indemnifying
Party consents to the retention of such counsel at its expense or unless the
named parties to any action or proceeding include both the Indemnifying Party
and the Indemnified Party and a representation of both the Indemnifying Party
and the Indemnified Party by the same counsel would be inappropriate due to
the actual or potential differing interests between them (such as the
availability of different defences). If the Indemnifying Party, having
elected to assume such control, thereafter fails to defend the Third Party
Claim within a reasonable time, the Indemnified Party shall be entitled to
assume such control and the Indemnifying Party shall be bound by the results
obtained by the Indemnified Party with respect to such Third Party Claim. If
any Third Party Claim is of a nature such that (i) the Indemnified Party is
required by Applicable Law or the order of any court, tribunal or regulatory
body having jurisdiction, or (ii) it is necessary in the reasonable view of
the Indemnified Party acting in good faith and in a manner consistent with
reasonable commercial practices, in respect of (A) a Third Party Claim by a
customer relating to products or services supplied by the Business or (B) a
Third Party Claim relating to any Contract which is necessary to the ongoing
operations of the Business or any material part thereof in order to avoid
material damage to the relationship between the Indemnified Party and any of
its major customers or to preserve the rights of the Indemnified Party under
such an essential Contract, to make a payment to any Person (a "Third Party")
with respect to the Third Party Claim before the completion of settlement
negotiations or related legal proceedings, as the case may be, the
Indemnified Party may make such payment and the Indemnifying Party shall,
promptly after demand by the Indemnified Party, reimburse the Indemnified
Party for such payment. If the amount of any liability of the Indemnified
Party under the Third Party Claim in respect of which such a payment was
made, as finally determined, is less than the amount which was paid by the
Indemnifying Party to the Indemnified Party, the Indemnified Party shall,
promptly after receipt of the difference from the Third Party, pay the amount
of such difference to the Indemnifying Party. If such a payment, by resulting
in settlement of the Third Party Claim, precludes a final determination of
the merits of the Third Party Claim and the Indemnified Party and the
Indemnifying Party are unable to agree whether such payment was unreasonable
in the circumstances having regard to the amount and merits of the Third
Party Claim, then such
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dispute shall be referred to and finally settled by binding arbitration from
which there shall be no appeal.
6.7 SETTLEMENT OF THIRD PARTY CLAIMS. If the Indemnifying Party fails to
assume control of the defence of any Third Party Claim, the Indemnified Party
shall have the exclusive right to contest, settle or pay the amount claimed.
Whether or not the Indemnifying Party assumes control of the negotiation,
settlement or defence of any Third Party Claim, the Indemnifying Party shall
not settle any Third Party Claim without the written consent of the
Indemnified Party, which consent shall not be unreasonably withheld or
delayed; provided, however, that the liability of the Indemnifying Party
shall be limited to the proposed settlement amount if any such consent is not
obtained for any reason within a reasonable time after the request therefor.
6.8 SET-OFF. The Purchaser shall be entitled to set-off the amount of
any Claim submitted under Section 6.1 as damages or by way of indemnification
against any other amounts payable by the Purchaser to the Vendors whether
under this Agreement or otherwise.
ARTICLE 7
DISPUTE RESOLUTION
7.1 ARBITRATION. Any dispute concerning the validity, the interpretation
or the execution of this Agreement or any agreement or document entered into
pursuant to this Agreement, shall be definitively settled in accordance with
the Rules of the Cepani, by one or several arbitrators appointed in
accordance these Rules. The Arbitration Tribunal shall be composed of three
arbitrators. The place of the arbitration shall be Sint-Niklaas, Belgium.
ARTICLE 8
GENERAL
8.1 FURTHER ASSURANCES. Each of the parties hereto from time to time at
the request and expense of any other party hereto and without further
consideration, shall execute and deliver such other instruments of transfer,
conveyance and assignment and take such further action as the other party may
require to more effectively complete any matter provided for herein.
8.2 EXPENSES. Unless otherwise provided in this Agreement, each of the
parties hereto shall bear its or his own expenses (including those of legal
counsel and advisors) incurred in connection with this Agreement and the
transactions contemplated by this Agreement.
8.3 ENTIRE AGREEMENT. This Agreement and the Schedules hereto together
with any agreements referenced herein constitute the entire agreement between
the parties pertaining to the subject matter hereof and supersede all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties respecting the subject matter hereof and there are no
implied representations, warranties or conditions, statutory or otherwise,
except as expressly set forth herein. There are no oral representations or
warranties among the parties
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hereto of any kind. This Agreement may not be amended or modified in any
respect except by written instrument signed by all the parties hereto.
8.4 TIME OF THE ESSENCE. Time shall be of the essence of this Agreement.
8.5 NOTICES. Any notice required or permitted to be given hereunder
shall be in writing and shall be effectively given if (i) delivered
personally or (ii) sent by fax or other similar means of electronic
communication, in each case to the applicable address set out on the
execution page of this Agreement. Any notice so given shall be deemed
conclusively to have been given and received when so personally delivered or
on the day of faxing or sending by other means of recorded electronic
communication, provided that such day in either event is a Business Day.
Otherwise, such communication shall be deemed to have been given and made and
to have been received on the next following Business Day. Any party hereto or
others mentioned above may change any particulars of its address for notice
by notice to the others in the manner aforesaid.
8.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Belgium.
8.7 SEVERABILITY. Any covenant or provision hereof determined to be void
or unenforceable in whole or in part shall not be deemed to affect or impair
the validity of any other covenant or provision hereof and the covenants and
provisions hereof are declared to be separate and distinct.
8.8 WAIVER. A waiver of any default, breach or non-compliance under this
Agreement is not effective unless in writing and signed by the party to be
bound by the waiver. No waiver shall be inferred from or implied by any
failure to act or delay in acting by a party in respect of any default,
breach or non-observance or by anything done or omitted to be done by the
other party. The waiver by a party of any default, breach or non-compliance
under this Agreement shall not operate as a waiver of that party's rights
under this Agreement in respect of any continuing or subsequent default,
breach or non-observance (whether of the same or any other nature).
8.9 SUCCESSORS AND ASSIGNS. This Agreement shall not be assignable by
any of the parties hereto without the prior written consent of the other
parties hereto and the Agreement shall enure to the benefit of and be binding
upon the respective successors and permitted assigns of the parties hereto.
8.10 NON-MERGER. Each party hereby agrees that all provisions of this
Agreement, other than the representations and warranties contained in Article
5, and the indemnities in Sections 6.1 and 6.2 hereof (which shall be subject
to the special arrangements provided in such Articles or Sections), shall
survive the execution, delivery and performance of this Agreement, the
Closing Date and the execution, delivery and performance of any and all
documents delivered in connection with this Agreement.
8.11 COUNTERPARTS AND FACSIMILE. This Agreement may be executed by the
parties in any number of separate counterparts each of which, when so
executed and delivered, shall be an original, but all such counterparts shall
together constitute one and the same instrument. Counterparts may be executed
either in original or faxed form and the parties adopt any
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signatures received by a receiving fax machine as original signatures of the
parties, provided, however that any party providing its signature in such
manner shall promptly forward to the other party an original of the signed
copy of this Agreement which was so faxed.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF this Agreement has been executed by the parties
hereto.
/s/ Xxx Xxxxxxxxxx
---------------------------- --------------------------------------------------------
Witness XXX XXXXXXXXXX
Address: 9190 STEKENE, Bormte 204/A
Facsimile: 03/779.99.89
/s/ Xxxxx De Laet
---------------------------- --------------------------------------------------------
Witness XXXXX DE LAET
Address: 9190 STEKENE, Bormte 204/A
Facsimile: 03/779.99.89
E-AUCTION BELGIUM N.V.
e-Auction Global Trading Inc. (Nevada)
Per: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------------
Address: 9190 STEKENE, Xxxxxxxxxxx 0
Facsimile:
------------------------------------
e-Auction Global Trading Inc. (Canada)
Per: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------------
Address: 9190 STEKENE, Xxxxxxxxxxx 0
Facsimile:
------------------------------------
E-AUCTION GLOBAL TRADING INC.
Per: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------------
Address: 000 Xxx Xxxxxx, XXX Place, Suite 0000
Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile: 000-000-0000
