SHARE PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 31st day of August 2000.
BETWEEN:
A PECES B.V., a corporation incorporated under the laws of the
Netherlands, represented by Paul Stok, (hereinafter referred
to as "Peces")
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B RENDEX B.V., a corporation incorporated under the laws of the
Netherlands, represented by Rene Brouwer, (hereinafter
referred to as "Rendex")
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C VAN VEEN BOYS B.V., a corporation incorporated under the laws
of the Netherlands, represented by Kees Van Veen, (hereinafter
referred to as "Van Veen")
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D WODAN B.V., a corporation incorporated under the laws of the
Netherlands, represented by Gijs Pol, (hereinafter referred to
as "Wodan")
(Parties "a" through "d" collectively hereinafter referred to
as the "Vendors")
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E V-WHOLESALER.COM B.V., a corporation incorporated under the
laws of the Netherlands, represented by [ ], (hereinafter
referred to as the "Purchaser")
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F GIJS POL, an individual resident of The Netherlands
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G PAUL STOK, an individual resident of The Netherlands
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H RENE BROUWER, an individual resident of The Netherlands
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I KEES VAN VEEN, an individual resident of The Netherlands
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WHEREAS Peces, Rendex, Van Veen and Wodan each are the registered and
beneficial owners of Twenty-Five percent (25%) of all the issued and outstanding
shares of Kwatrobox B.V. ("Kwatrobox");
AND WHEREAS the Purchaser is willing to purchase and the Vendors are
willing to sell all of the issued and outstanding shares of Kwatrobox on the
terms and conditions contained in this Agreement;
AND WHEREAS the Purchaser is, or will be on or before the Closing Date,
a wholly owned subsidiary of e-Auction Global Trading Inc.;
AND WHEREAS Kwatrobox is the registered and beneficial owner of all of
the issued and outstanding shares of Palm Veilingsystemen B.V. and
Automatiseringsbureau Palm B.V. and is the registered and beneficial owner of
80% of the issued and outstanding shares of Scoop Software B.V. and Palm
Veilingsystemen B.V. is the registered and beneficial owner of all of the issued
and outstanding shares of Nieaf Systems B.V. (each of the aforementioned
Affiliates of Kwatrobox is hereinafter referred to as a "Subsidiary" or
collectively as the "Subsidiaries");
AND WHEREAS it is the intention of the parties to hereby rescind and
novate the existing share purchase agreement (the "Old Share Purchase
Agreement") made as of May 10, 2000 among Peces, Rendex, Van Veen, Wodan,
v-Wholesaler.com BV on behalf of Acquireco, Gijs Pol, Paul Stok, Rene Brouwer,
Kees Van Veen, v-Wholesaler.com, Inc. and e-Auction Global Trading Inc. and to
replace it, in its entirety, with this Agreement;
NOW THEREFORE this Agreement witnesses that, in consideration of the
mutual covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties covenant and agree as follows:
ARTICLE 1
INTERPRETATION
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 Article or Section
or other portion of this Agreement;
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(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 Kwatrobox and Subsidiaries 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
Kwatrobox and the Subsidiaries; and
(xi) all proceeds of any or all of the foregoing received
or receivable after the Closing Date;
(e) "BOOKS AND RECORDS" means all books, records, files and papers
of Kwatrobox and the Subsidiaries 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 Kwatrobox and the Subsidiaries, and all
copies and recordings of the foregoing;
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(f) "BUSINESS" means the business carried on by Kwatrobox and the
Subsidiaries as more particularly set out in Schedule 1.1(f);
(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 Toronto, Ontario and/or Amsterdam, The Netherlands;
(h) "CLAIM" has the meaning ascribed thereto in Section 7.1;
(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________________, 2000 or such earlier or
later date as may be agreed
upon in writing by the Parties to this Agreement;
(k) "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;
(l) "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 Material
Contracts in connection with or as a result of the transfer of
the Assets and Shares to the Purchaser;
(m) "DIRECT CLAIM" shall have the meaning ascribed thereto in
Section 7.5;
(n) "E-AUCTION" means e-Auction Global Trading Inc., a corporation
incorporated under the laws of the State of Nevada;
(o) "E-AUCTION SHARES" means common shares in the capital of
e-Auction to be delivered to the Vendors pursuant to Section
2.3(b) hereof;
(p) "EMPLOYEES" means an individual who is employed by Kwatrobox
and/or each Subsidiary in the Business, and "EMPLOYEES" means
every Employee;
(q) "FINANCIAL STATEMENTS" shall have the meaning ascribed thereto
in Section 6.1(i);
(r) "INDEMNIFIED PARTY" means a Person whom the Vendors, the
Purchaser or e-Auction, as the case may be, has agreed to
indemnify under Section 7;
(s) "INDEMNIFYING PARTY" means, in relation to an Indemnified
Party, the Party to this Agreement which has agreed to
indemnify that Indemnified Party under Section 7;
(t) "INTELLECTUAL PROPERTY" means all rights to and interests in:
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(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 Kwatrobox and/or each Subsidiary;
(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 Kwatrobox
and/or each Subsidiary;
(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
Kwatrobox and/or each Subsidiary;
(v) all of the intellectual property listed in Schedule
3.2(c);
(vi) all other intellectual and industrial property rights
throughout the world Related to the Business and
developed by Kwatrobox and/or each Subsidiary;
(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) "INVENTORIES" means all inventories of Kwatrobox and/or each
Subsidiary including:
(i) finished goods, work in progress, raw materials, new
and unused production, packing and shipping supplies;
(ii) new and unused maintenance items; and
(iii) all other materials and supplies on hand to be used
or consumed or which might be used or consumed in
connection with the manufacture, packing, shipping,
advertising, selling or furnishing of products;
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(v) "INTERIM PERIOD" means the period commencing on the date of
signing of this Agreement and ending on the Closing Date;
(w) "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;
(x) "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;
(y) "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;
(z) "MATERIAL ADVERSE CHANGE" means a change in the business,
operations or capital of Kwatrobox and/or each Subsidiary, as
the context may require, which has had or could reasonably be
expected to have an adverse effect on the value of the
Business or the Shares;
(aa) "MATERIAL CONTRACT" means an agreement (whether oral or
written) Related to the Business to which Kwatrobox and/or
each Subsidiary is a party or by which Kwatrobox and/or each
Subsidiary 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 Kwatrobox and/or
each Subsidiary of less than US$10,000 over the term of the
agreement and is not otherwise material to the Condition of
the Business;
(bb) "ORDINARY COURSE" an action taken by a Person will be deemed
to have been taken in the "Ordinary Course" only if such
action is consistent with the past practices of the Person and
is taken in the ordinary course of the normal day-to-day
actions of the Person;
(cc) "PARTY" means a party to this Agreement and any reference to a
party includes its successors and permitted assigns; and
"PARTIES" means every party;
(dd) "PAYMENT DIRECTION" means the payment direction in the form
attached at Schedule 1.1(ff);
(ee) "PERSON" is to be broadly interpreted and includes an
individual, a corporation, a partnership, a trust, an
unincorporated organization, and the successors, assigns,
executors, heirs, administrators or other legal
representatives of an individual in such capacity;
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(ff) "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);
(gg) "PERSONAL PROPERTY LEASES" means all chattel leases, equipment
leases, rental agreements, conditional sales contracts and
other similar agreements;
(hh) "PRO-RATA SHARE" means, with respect to each Shareholder, the
proportion of its holdings of shares in the capital of
Kwatrobox, as set out in the recitals to this Agreement, to
the total number of shares in the capital of Kwatrobox
outstanding on the Closing Date;
(ii) "PURCHASE PRICE" has the meaning ascribed thereto in Section
2.2;
(jj) "PURCHASER" means v-Wholesaler.com B.V., a corporation
incorporated under the laws of the Netherlands;
(kk) "REAL PROPERTY" means all real property owned or used by
Kwatrobox and/or each Subsidiary Related to the Business
including any improvements;
(ll) "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;
(mm) "RELATED TO THE BUSINESS" means, directly or indirectly, used
in, arising from or relating in any manner to the Business;
(nn) "SHARES" means all of the issued and outstanding shares in the
capital of Kwatrobox more specifically set out in the recitals
to this Agreement;
(oo) "SHAREHOLDER" means any of Gijs Pol, Paul Stok, Rene Brouwer
and Kees Van Veen and "SHAREHOLDERS" means every Shareholder;
(pp) "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 and social security charges,
together with any instalments with respect thereto, and any
interest, fines and penalties imposed by any governmental
authority (including national, provincial, municipal and
foreign governmental authorities and social security
agencies), and whether disputed or not;
(qq) "THIRD PARTY" has the meaning given in Section 7.7; and
(rr) "THIRD PARTY CLAIM" has the meaning given in Section 7.5.
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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. Unless otherwise indicated, all amounts
referred to in this Agreement are stated in Netherlands Guilders 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 Purchaser, payment by certified
cheque, bank draft or electronic transfer shall be made payable to the order of
or to the account of the Vendors, 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
---------
<TABLE>
<CAPTION>
<S> <C>
Schedule 1.1(f) - Business of Kwatrobox and each Subsidiary
Schedule 1.1(ff) - Payment Direction
Schedule 3.2(c) - Intellectual Property
Schedule 3.2(d) - Employment Agreements
Schedule 6.1(g) - Liens
Schedule 6.1(i) - Financial Statements of Kwatrobox and each Subsidiary
Schedule 6.1(m) - Real Property
Schedule 6.1(o) - Insurance
Schedule 6.1(p) - Material Contracts
Schedule 6.1(q) - List of Receivables
Schedule 6.1(r)(iv) - Licenses of Intellectual Property
Schedule 6.1(s) - Licenses and Permits
Schedule 6.1(u) - Consents
Schedule 6.1(v) - Notices
Schedule 6.1(y) - No Conflict
Schedule 6.1(z)(i) - Employees
Schedule 6.1(z)(vi) - Benefit Plan
Schedule 6.1(bb) - Affiliated Transactions
</TABLE>
Insofar as Schedules that must be attached to this Agreement are not available
on the date of signing hereof, they shall be completed and made available no
later than one (1) Business Day
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before the Closing Date and are subject to prior review and acceptance by the
Purchaser in its sole discretion, acting reasonably.
ARTICLE 2
PURCHASE OF SHARES
2.1 AGREEMENT TO PURCHASE AND SELL. On the Closing Date, 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 an aggregate sum equal
to up to Ten Million Five Hundred Thousand (10,500,000) Guilders consisting of
Four Million (4,000,000) Guilders in cash and up to a maximum of Six Million
Five Hundred Thousand (6,500,000) Guilders in e-Auction Shares, payable as
provided for in Section 2.3.
2.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid and satisfied by
the Purchaser to the Vendors as follows:
(a) The payment schedule for the cash component of the Purchase
Price is as follows:
1. Seven Hundred and Fifty Thousand (750,000) Guilders
on the Closing Date;
2. Two Million Two Hundred and Fifty Thousand
(2,250,000) Guilders on the date which is one year
after the Closing Date; and
3. One Million (1,000,000) Guilders on the date which is
two years after the Closing Date.
(b) The payment schedule for the e-Auction Share component of the
Purchase Price is as follows:
1. Five Hundred Thousand (500,000) e-Auction Shares on
the Closing Date;
2. Four Hundred and Fifty Thousand (450,000) e-Auction
Shares on the date which is one year after the
Closing Date;
3. One Hundred and Fifty Thousand (150,000) e-Auction
Shares on the date which is two years after the
Closing Date; and
4. One Million (1,000,000) Guilders worth of e-Auction
Shares (the "Last Payment") if Kwatrobox B.V. and the
Subsidiaries show combined pre-tax earnings
("Earnings") of not less than US$1.4 Million for the
period commencing on the Closing Date to and
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including the date which is three years after the
Closing Date (the "Three Year Period"). To the extent
that the Earnings are less than US$1.4 Million for
the Three Year Period but are greater than US$1
Million, the amount of the Last Payment shall be
reduced by the deficit between the Earnings and US$
1.4 Million. To the extent that the Earnings for the
Three Year Period are less than US$1 Million, the
Purchaser shall be under no obligation whatsoever to
make any additional payment to the Vendors pursuant
to this Section 2.3(b)(4). The Vendors shall have the
right, at their own cost and expense, to review the
Purchaser's calculations of Earnings for the Three
Year Period at any time during normal business hours
during the period of Thirty (30) days from and after
the date on which the Purchaser advises the Vendors
of the Earnings for the Three Year Period. For the
purposes of this Section 2.3(b)(4) and to the extent
that the Vendors are entitled to some or all of the
Last Payment, the Last Payment shall be converted
into e-Auction Shares at a price equal to Five (5)
Guilders in Netherlands funds per share.
Notwithstanding the foregoing, in no event, pursuant
to the terms of this Section 2.3(b)(4), shall the
Purchaser be obligated to pay the Vendors an amount
in excess of Two Hundred Thousand (200,000) e-Auction
Shares.
2.4 PERFORMANCE GUARANTEE. e-Auction unconditionally and irrevocably guarantees
the performance of the Purchaser under this Agreement; and
2.5 FURTHER COMFORT BY PURCHASER. The Purchaser agrees not to dispose of the
assets of Kwatrobox as long as any obligations vis-a-vis the Vendors remain
outstanding, with the exception of the transfer of the shares Kwatrobox holds in
Automatiseringsbureau Palm B.V., Palm Veilingsystemen B.V. or the transfer by
Palm Veilingsystemen of the share it holds in Nieaf Systems B.V. or as otherwise
agreed to by the Parties hereto.
2.6 STATUS OF E-AUCTION SHARES. All Parties hereto acknowledge and agree that
neither the Purchaser nor e-Auction shall have any responsibility in connection
with the fact that, on the Closing Date, the e-Auction Shares may not be
registered or qualified by any federal, state or provincial securities
regulatory body. Furthermore, the e-Auction Shares may be subject to U.S.
Securities and Exchange Commission imposed trading restrictions and, in
addition, may not be eligible to be posted and listed for trading on a North
American stock exchange or quoted on a North American quotation system or
dealers' network.
ARTICLE 3
CLOSING ARRANGEMENTS
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3.1 CLOSING. The Closing shall take place on the Closing Date at the offices of
Holland Van Gijzen Advocaten en notarissen or at such other time or place as may
be agreed upon orally or in writing by the Parties to this Agreement.
3.2 NOTARIAL DEED. The Notarial deed of transfer of the Shares will be executed
before Mr. Michel Dick van Waateringe, Civil Law Notary in Amsterdam, The
Netherlands, or a deputy of Mr. Van Waateringe. Mr. Van Waateringe, is a civil
law notary of Holland Van Gijzen advocaten en notarissen, the firm of the
external legal advisors to the Purchaser, v-Wholesaler.com, Inc. and e-Auction.
The Vendors acknowledge that they are aware of the provisions 9 and 10 of the
guidelines concerning the association between civil law notaries and
barristers/solicitors as established by the Royal Professional Association of
Civil Law Notaries (Koninklijke Notariele Beroepsorganisatie). The Vendors agree
that Holland Van Gijzen advocaten en notarissen might in the future advise and
act on behalf of Purchaser, v-Wholesaler.com, Inc. and/or e-Auction with respect
to this Agreement and the execution thereof, including any dispute.
3.3 CONDITIONS PRECEDENT. On the Closing Date, the Vendors shall deliver or
cause to be delivered to the Purchaser the following, the non-delivery
of which entitles the Purchaser in its sole discretion, without
limiting any rights or remedies available to the Purchaser at law or in
equity, either to: (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:
(a) legal opinion of the Vendor's solicitors (lawyers) addressed
to the Purchaser and the Purchaser's solicitors (lawyers) in a
form satisfactory to the Purchaser acting reasonably; and
(b) a list of all Intellectual Property of Kwatrobox and/or any of
its Subsidiaries, when it was developed, what it does, who
owns it and whether any licences exist with respect to the
Intellectual Property.
3.4 PURCHASER'S CLOSING DELIVERIES. On the Closing Date, the Purchaser
shall deliver or cause to be delivered to the Vendors the following,
the non-delivery of which entitles the Vendors in their sole
discretion, without limiting any rights or remedies available to the
Vendors at law or in equity, either to: (a) terminate this Agreement by
notice to the Purchaser, in which event the Vendors shall be released
from their 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 their right of termination in the event of
non-fulfilment of any other condition in whole or in part:
(a) the payments referred to in Sections 2.3 above that are
deliverable at Closing; and
(b) evidence in 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.
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3.5 VENDORS' FURTHER OBLIGATIONS. Each of the Vendors:
(a) warrants that on the Closing Date each of the Vendors, in the
persons of Messrs. Paul Stok, Rene Brouwer, Kees van Veen and Gijs Pol,
will have entered into a management agreement with the Purchaser,
Kwatrobox or the relevant Subsidiary, which management agreements will
contain a substantial non-competition clause for each Vendor and Messrs
Paul Stok, Rene Brouwer, Kees van Veen and Gijs Pol;
(b) will have notified the Civil Law Notary of their respective bank
accounts and will have given the Purchaser payment instruction
concerning the payments due on the Closing Date, in the form of
Schedule 1.1(ff), and the future payments, both as contemplated in
Article 2 hereof, which instructions can be changed by each Vendor
(with respect to such portion of the Purchase Price as is allocated to
it) by informing the Purchaser thereof in writing at least three weeks
before a payment is due;
(c) undertakes, covenants and agrees, notwithstanding any other Article
or Section of this Agreement, to indemnify the Purchaser and to hold
the Purchaser harmless or, in the sole discretion of Purchaser, to
indemnify and hold harmless Kwatrobox and/or its Subsidiaries against
the following:
(i) the termination of the agreements concluded in the name of
Nieaf Smitt B.V. but performed by Nieaf Systems B.V. on the
grounds that another party to any such agreements has not
agreed to the assignment of same by Nieaf Smitt B.V. to Nieaf
Systems B.V.;
(ii) in the event that Van Veen Boys is not the same legal entity
as QQC B.V.;
(iii) a pledge has been vested in the shares in Nieaf Systems B.V.
on behalf of Teleflower Auction B.V.; and
(iv) any damages whatsoever are due by Automatiseringsbureau Palm
to De Koning Bloemenexport and any and all costs (including
lawyers fees) whatsoever associated with defending a claim in
respect thereof.
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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, on or before
the Closing Date, 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 the Vendors hereby 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 on or before the Closing Date:
(a) Representations, Warranties and Covenants. The
representations, warranties and covenants of the Vendors as
contained in this Agreement shall be true and correct at the
Closing Date and when signing this Agreement.
(b) Vendor's 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 on or before the Closing Date
and shall have executed and delivered or caused to have been
executed and delivered to the Purchaser on the Closing Date
all the documents contemplated in Section 3.3 and 3.5 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 in the Business and
Assets of Kwatrobox.
(e) Consents and Approvals. All the Consents and Approvals have
been obtained.
(f) No Litigation. There shall be no litigation or proceedings:
(i) pending or threatened against the Vendors or against
Kwatrobox and/or any of its subsidiaries or any of
their respective 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 the Vendors or against
Kwatrobox and/or any of its subsidiaries or any of
their respective 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, in its
sole discretion, would make the completion
of the transactions contemplated by this
Agreement inadvisable.
<PAGE>
-14-
4.2 CONDITION NOT FULFILLED. If any condition in Section 4.1 has not been
fulfilled on or before the Closing Date, 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, on or before the Closing
Date each of the following conditions have been satisfied, it being understood
that the following conditions are included for the exclusive benefit 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 on or before the Closing Date:
(a) Representations, Warranties and Covenants. The
representations, warranties and covenants of the Purchaser in
Section 6.2 shall be true and correct on the Closing Date.
(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 on or
before the Closing Date and shall have executed and delivered
or caused to have been executed and delivered to the Vendors
on the Closing Date all the documents contemplated in Section
3.4 or elsewhere in this Agreement.
(c) Good Title. If and when issued in accordance with Subsection
2.3(b) of this Agreement, the e-Auction Shares shall have been
validly issued as fully paid and non-assessable shares in the
capital of e-Auction and be free and clear of any and all
Liens of any kind and nature whatsoever.
(d) Incorporation of the Purchaser. The Purchaser shall have been
incorporated and shall have acquired legal status.
4.4 CONDITION NOT FULFILLED. If any condition in Section 4.3 shall not have been
fulfilled on or before the Closing Date, then the Vendors, in their sole
discretion may, without limiting any rights or remedies available to the Vendors
at law or in equity, either:
(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
<PAGE>
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(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
PRE-CLOSING COVENANTS
5.1 PRE-CLOSING COVENANTS OF THE VENDORS. During the Interim Period, the Vendors
will cause Kwatrobox and the Subsidiaries to conduct Business in the Ordinary
Course and, without limiting the generality of the foregoing, will cause
Kwatrobox and/or each Subsidiary not to:
(a) make or agree to make any change in the compensation of any
director, officer or Employee and to not pay or agree 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;
(b) suffer any Material Adverse Change;
(c) declare or make any payment of any dividend or other
distribution in respect of its shares and not to redeem,
purchase or otherwise acquire any shares;
(d) issue or sell any shares or other securities or issue, sell or
grant any option, warrant, or right to purchase any shares or
other securities of Kwatrobox and/or any Subsidiary;
(e) sell, assign, transfer, mortgage, pledge, grant a security
interest in or otherwise encumber 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;
(f) change any accounting or costing systems or methods in any
material respect;
(g) suffer any extraordinary loss or cancel or waive any debt,
claim or other right;
(h) incur or assume 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;
(i) enter into any Material Contract or any other transaction that
was not in the normal course of business; or
(j) terminate, cancel or modify in any material respect or receive
notice or a request for termination, cancellation or
modification in any material respect of any Material Contract.
<PAGE>
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ARTICLE 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE VENDORS AND THE
SHAREHOLDERS. 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 each of the Vendors and
the Shareholders, each of the Vendors and the Shareholders hereby, represents,
warrants and covenants to and with the Purchaser as follows:
(a) Ownership of Shares. The Vendors will be on the Closing Date,
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 the Vendors enforceable
against 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. The Vendors have the legal
capacity to enter into this Agreement and all other agreements
and instruments to be executed by them as contemplated by this
Agreement and to carry out their 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 Kwatrobox, nor any of the Subsidiaries or
the Vendors has committed an act of bankruptcy, pursuant to
Applicable Law, 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 been presented in respect of it. Neither Kwatrobox, nor
of the Subsidiaries or the Vendors 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
Kwatrobox, any of the Subsidiaries or the Vendors 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. Kwatrobox and the Subsidiaries are
corporations duly incorporated, organized and validly
subsisting under the laws of the Netherlands. Kwatrobox and
each of the Subsidiaries is duly registered. Kwatrobox and the
Subsidiaries have 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.
<PAGE>
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(f) Share Capital. The authorized capital of Kwatrobox consists of
2,000 shares of NLG 100 each and there are 400 shares issued
and outstanding as fully paid and non-assessable shares in the
capital of Kwatrobox. Kwatrobox 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 Kwatrobox
and/or the Subsidiaries.
(g) Title to Assets. Except as disclosed in Schedule 6.1(g),
Kwatrobox and the Subsidiaries have 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
Kwatrobox and the Subsidiaries of the Business or of any of
the Assets out of the ordinary course of Business.
(h) No Subsidiary. Kwatrobox has no subsidiaries except the
Subsidiaries or agreements of any nature to acquire any
subsidiary or to acquire or lease any other business
operations.
(i) Financial Statements. The Purchaser has been furnished with
the financial statements of Kwatrobox and the Subsidiaries for
the 1997, 1998 and 1999 fiscal years ending December 31, (the
"Financial Statements") prepared in accordance with the
Netherlands generally accepted accounting principles (GAAP),
copies of which are attached hereto as Schedule 6.1(i). The
balance sheets contained in such Financial Statements fairly
present in all material respects the financial position of
Kwatrobox and the Subsidiaries 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, 1999, Kwatrobox and the Subsidiaries have carried
on their 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 Kwatrobox and
the Subsidiaries.
(j) Closing Date Financial Statements. The Closing Date Financial
Statements, to be drafted after the execution of the
transactions contemplated herein shall present in all material
respects the financial position of Kwatrobox and the
Subsidiaries as of its date and the statements of earnings and
retained earnings contained in the Closing Date Financial
Statements will fairly present in all material respects the
results of operations for the period indicated and show an
equity at least equal to the equity shown in the Financial
Statements dated December 31, 1999. The Vendors shall have the
right, at their own cost and expense, to review the Closing
Date Financial Statements at any time during normal business
hours during the
<PAGE>
-18-
period of Thirty (30) days from and after the date on which
the Purchaser provides the Vendors with a copy of the Closing
Date Financial Statements. Any dispute with respect to the
Closing Date Financial Statements shall be referred to a
mutually agreed arm's length third party (the "Arbitrator")
whose decision shall be conclusive and binding upon the
Parties hereto. The costs of the Arbitrator shall be awarded
by the Arbitrator, in its sole discretion, and the decision of
the arbitrator shall be made within Sixty (60) days of any
referral thereto. In the event that the Parties are unable to
agree on an Arbitrator to resolve any such dispute, the matter
shall be referred to the District Court in Amsterdam, The
Netherlands, or as it may otherwise direct.
(k) Corporate Records. The minute books of each of Kwatrobox and
the Subsidiaries 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 Kwatrobox and
each Subsidiary is complete and accurate in all material
respects.
(l) Personal Property. All Personal Property is in good operating
condition and repair, ordinary wear and tear excepted.
(m) Real Property. Schedule 6.1(m) 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.
(n) Personal Property Leases. Each Personal Property Lease is in
full force and effect and has not been amended, and Kwatrobox
and each Subsidiary 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 Kwatrobox, each Subsidiary and any other party under
any Personal Property Lease.
(o) Insurance. The Business, properties and Assets of Kwatrobox
and each Subsidiary are insured for the benefit of Kwatrobox
and each Subsidiary in amounts deemed adequate by Kwatrobox's
and each Subsidiary's management against risk usually insured
against by Persons operating a business similar to the
Business of Kwatrobox and each Subsidiary in the localities
where such properties are located. Particulars of the policies
of insurance maintained by Kwatrobox and each Subsidiary as at
the Closing Date are set out in Schedule 6.1(o) hereto. All
policies are in full force and effect and neither Kwatrobox
nor the Subsidiaries are in default, whether as to payment of
premiums or otherwise, under the terms of such policies, nor
have they ever been refused insurance, nor have they claimed
under any insurance in the last five years in an amount
<PAGE>
-19-
exceeding Ten Thousand (10,000) Guilders per claim, except as
disclosed in schedule 6.1(o).
(p) Material Contracts. Schedule 6.1(p) lists all the Material
Contracts. Kwatrobox and/or each Subsidiary is not in default
under any Material Contract and neither Kwatrobox, each
Subsidiary 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 Kwatrobox and/or each
Subsidiary or any other party to the Material Contract. Each
Material Contract is in full force and effect, unamended by
written or oral agreement, and Kwatrobox and/or each
Subsidiary 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 Kwatrobox and/or each Subsidiary and any other
party under any Material Contract.
(q) Receivables. Schedule 6.1(q) 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 Kwatrobox and/or each Subsidiary does not
deal at arm's length.
(r) Intellectual Property.
(i) 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 Kwatrobox
and/or a Subsidiary. No application for registration
of any of the Intellectual Property has been
rejected.
(ii) Kwatrobox and/or each Subsidiary 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, if any, in any
copyright works within the Intellectual Property.
Kwatrobox and/or each Subsidiary 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) Except for the licenses disclosed in Schedule
6.1(r)(iv), Kwatrobox and/or each Subsidiary have not
permitted or licensed any Person to use any of the
Intellectual Property, except for
Automatiseringsbureau Palm's customers.
<PAGE>
-20-
(v) No Person has challenged the validity of any
registrations for the Intellectual Property or the
rights of Kwatrobox and/or each Subsidiary to any of
the Intellectual Property.
(vi) To the best of the knowledge of each of the Vendors
and the Shareholders, neither the use of the
Intellectual Property (which includes products,
processes, methods, substances, parts and other
materials presently sold by or used by Kwatrobox
and/or each Subsidiary 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 each of the Vendors
and the Shareholders, no other Person has infringed
Kwatrobox's and/or each Subsidiary's rights to the
Intellectual Property.
(viii) There is no governmental prohibition or restriction
on the use of the Intellectual Property.
(s) Licences and Permits. Kwatrobox and/or each Subsidiary owns,
holds, possesses or lawfully uses in the operation of the
Business all Licenses and Permits which are necessary for it
to conduct the Business or for the ownership and use of the
Assets in compliance with all Applicable Laws. All Licenses
and Permits material to the Business are listed at Schedule
6.1(s) and each Licence and Permit listed in Schedule 6.1(s)
is valid, subsisting and in good standing.
(t) Undisclosed Liabilities. Kwatrobox does not have any
liabilities, obligations, indebtedness or commitments, whether
accrued, absolute, contingent or otherwise, other than
liabilities disclosed in, reflected in or provided for in the
Financial Statements and which do not exceed in the aggregate
Twenty Five Thousand (25,000) Guilders.
(u) Consents and Approvals. Except as disclosed in Schedule
6.1(u), 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 Kwatrobox and/or each Subsidiary to
carry on the Business after the Closing as the Business is
currently carried on by it.
(v) Notices. Except as disclosed in Schedule 6.1(v), 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 Kwatrobox and/or each Subsidiary to carry on the
Business after the Closing as the Business is currently
carried on by Kwatrobox and/or each Subsidiary.
(w) Absence of Conflicting Agreements. The execution, delivery and
performance of this Agreement by each of the Vendors and the
Subsidiaries 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:
<PAGE>
-21-
(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 Kwatrobox
and/or each Subsidiary;
(ii) an event that, with notice or lapse of time or both,
pursuant to the terms of any Material Contract or
Licence and Permit, causes any right or interest of
Kwatrobox and/or each Subsidiary 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,
Kwatrobox or any Subsidiary.
(x) 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, the Shareholders, Kwatrobox or any
Subsidiary, or Related to the Business or affecting the
Business or the operations or capital of Kwatrobox and/or each
Subsidiary 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.
(y) No Conflict. Except as disclosed in Schedule 6.1(y), no
current director or officer of Kwatrobox and/or any Subsidiary
(nor anyone who was a director or officer of Kwatrobox and/or
any Subsidiary in the last fiscal year) and no current nor any
past 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 Kwatrobox and/or any
Subsidiary providing for the furnishing of services by or to
(except services related to such person acting as a director
or officer of Kwatrobox and/or Subsidiary), or rental of real
or personal property from or to, or otherwise requiring cash
payments to or by any such Person.
(z) Employees.
(i) Schedule 6.1(z)(i) lists all the Employees and the
age, position, status, length of service,
compensation and all other benefits of each of them,
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.
(ii) There is no labour strike, dispute, slowdown or
stoppage actually pending or involving or, to the
best of the knowledge of each of the Vendors and the
Shareholders, threatened against Kwatrobox and/or
each Subsidiary with respect to the Business;
<PAGE>
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(iii) Other than as set out in their written contracts of
employment with Kwatrobox and/or each Subsidiary, no
Employee has any agreement as to length of notice
required to terminate his or her employment;
(iv) All required withholding of amounts from the
Employees have been paid to the appropriate authority
in compliance with Applicable Law.
(v) No notice has been received by Kwatrobox and/or the
Subsidiaries or the Vendors of any complaint which
has not been resolved, filed by any of its Employees
claiming that Kwatrobox and/or the Subsidiaries have
violated any applicable employee or human rights or
similar legislation in any jurisdictions in which
Kwatrobox and/or the Subsidiaries operate, or of any
complaints or proceedings which have not been
resolved of any kind involving Kwatrobox and/or the
Subsidiaries or, to each of the Vendor's and the
Shareholders' knowledge, after due inquiry, any of
the Employees before any labour relations board.
There are no outstanding orders or charges against
Kwatrobox and/or the Subsidiaries under any
applicable health and safety legislation in any
jurisdictions in which Kwatrobox and/or the
Subsidiaries carries on business. All levies,
assessments and penalties made against Kwatrobox
and/or the Subsidiaries pursuant to the workers'
compensation legislation in the jurisdictions in
which Kwatrobox and/or the Subsidiaries carries on
business have been paid by Kwatrobox and/or the
Subsidiaries and Kwatrobox and/or the Subsidiaries
have not been reassessed under any such legislation
except such as have been resolved.
(vi) The only benefit plans, including pension schemes, of
Kwatrobox and/or the Subsidiaries (the "Benefit
Plans") are listed in Schedule 6.1(z)(vi) hereto. All
contributions or premiums required to be made by
Kwatrobox and/or the Subsidiaries under the terms of
the Benefit Plans have been made. Kwatrobox and/or
the Subsidiaries may terminate the Benefit Plans.
Kwatrobox and the Subsidiaries has furnished to the
Purchaser all related documentation and plan
summaries, booklets and personal manuals related to
the Benefit Plans.
(vii) There are no back-service obligations or other pension
liabilities with regard to the Employees other than
those specifically included and mentioned in the
Financial Statements.
(viii) The Financial Statements and the Closing Date
Financial Statements are true and correct in
presenting Kwatrobox's and each of the Subsidiary's
liabilities vis-a-vis the Employees, including
reservations for vacation monies and non-taken
holidays.
(aa) Customers. Neither the Vendors nor the Shareholders is aware
of, nor has it received notice of, any intention on the part
of any such customer to cease doing business with Kwatrobox
and/or the Subsidiaries or to modify or change in any material
manner any existing arrangement with Kwatrobox and/or the
<PAGE>
-23-
Subsidiaries for the purchase of any products or services. The
relationships of Kwatrobox and/or the Subsidiaries with each
of its principal customers is satisfactory, and there are no
unresolved disputes with any such customer.
(bb) Affiliated Transactions. Except as disclosed in Schedule
6.1(bb), neither Kwatrobox nor the Subsidiaries are liable in
respect of advances, loans, guarantees to or on behalf of any
shareholder, officer, director, employee or any other Person
with whom Kwatrobox and/or the Subsidiaries does not deal at
arm's length.
(cc) Taxes. Kwatrobox and the Subsidiaries have 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 Kwatrobox and/or the Subsidiaries
to the date hereof, and each such return, report and estimate
is complete and accurate in all material respects and in
compliance with Applicable Law. Kwatrobox and the Subsidiaries
have 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
Kwatrobox and/or the Subsidiaries. All assessments of Taxes
with respect to Kwatrobox and/or the Subsidiaries 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 Kwatrobox and/or the
Subsidiaries would be liable.
(dd) Environmental. Neither Kwatrobox nor any of the Subsidiaries
infringes and/or breaches any environmental laws and they have
not caused, and do not presently cause, any soil, water, air
or other environmental pollution.
(ee) Full Disclosure. None of the foregoing representations and
warranties and no document furnished by or on behalf of
Kwatrobox and/or the Subsidiaries, the Vendors or the
Shareholders 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 Kwatrobox and/or the
Subsidiaries and their 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.
6.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. 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
<PAGE>
-24-
upon the representations, warranties and covenants of the Purchaser, the
Purchaser 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 the Netherlands.
(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.
(d) Bankruptcy. The Purchaser has not committed an act of
bankruptcy, pursuant to Applicable Law, 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 been presented in respect of it. The
Purchaser 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 or any
of the assets or shares of the Purchaser and no execution or
distress has been levied upon any of the assets or shares.
(e) Litigation. There is no material 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, related to its business or affecting
the business or the operations or capital of the Purchaser 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.
(f) 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.
<PAGE>
-25-
6.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS, OBLIGATIONS AND
AGREEMENTS.
(a) The representations, warranties, covenants, obligations and
agreements of the Vendors and the Shareholders 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 three (3) years from the Closing
Date except for the representations and warranties in sections
6.1 (a), (b), (c), (e), (f) and (g) which shall survive and
continue in full force and effect without limitation of time.
(b) The representations and warranties of the Purchaser 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 three (3) years from the Closing Date
except for the representations and warranties in sections
6.2(a), (b), (c) and (d) which shall survive and continue in
full force and effect without limitation of time.
ARTICLE 7
INDEMNIFICATION
7.1 INDEMNITY BY THE VENDORS. The Shareholders and the Vendors, each in
accordance with their Pro-rata Share, shall indemnify and hold the Purchaser,
the Subsidiaries and their respective Affiliates, and each of their respective
directors, officers, employees, agents, representatives, assigns 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 or the Shareholders 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-fulfilment of any covenant or
agreement on the part of the Vendors or the Shareholders under
this Agreement or under any other agreement, certificate or
instrument executed and delivered pursuant to this Agreement.
In the event the Shareholders' or Vendors' liability exceeds Seven Million Seven
Hundred and Fifty Thousand (7,750,000) Guilders, the Shareholders and the
Vendors shall be jointly and severally liable for the amount of the excess.
7.2 REIMBURSE. The Purchaser may, in its sole discretion, demand in the event of
a breach of the representations, warranties and covenants of the Vendors and the
Shareholders, that
<PAGE>
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Kwatrobox and/or the Subsidiaries be brought into a financial state that is the
equivalent to that which would exist if the breach had not occurred by way of
set-off of any and all amounts which may still be owing by the Purchaser to the
Vendors pursuant to Article 2 hereof.
7.3 INDEMNITY BY THE PURCHASER. The Purchaser shall indemnify and hold the
Vendors and the Shareholders harmless in 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, 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-fulfilment of any covenant or
agreement on the part of the Purchaser under this Agreement or
under any other agreement, certificate or instrument executed
and delivered pursuant to this Agreement.
7.4 LIMITATIONS.
(a) No Party shall have any Liability for indemnification pursuant
to Sections 7.1 or 7.3 unless and until the accumulated
aggregate amount of Claims of the Indemnified Party exceeds
Twenty-Five Thousand (25,000) Guilders, following which all
such accumulated Claims and all further Claims of the
Indemnified Party shall be recoverable as provided in this
Agreement. The maximum amount for which Parties are liable to
each other is the lesser of: (a) the aggregate amount paid by
the Purchaser to the Vendors as at the date that such
liability for a Claim or Claims is finally determined; or (b)
Ten Million Five Hundred Thousand (10,500,000) Guilders.
(b) The Purchaser agrees that if it has a Claim or seeks
indemnification pursuant to the terms of this Agreement, it
shall seek redress in the following order:
1. exhaust the rights and remedies provided by Section
7.9, and if insufficient;
2. seek redress from and against the Vendors; and
A. if insufficient or
B. no satisfactory resolution is obtained
within Three (3) months of either:
i. the Vendors acknowledging liability
for such Claim or indemnification,
or
ii the date of application by the
Purchaser for redress to the
District Court in Amsterdam, The
Netherlands;
3. seek redress for the balance of the Claim or
indemnification, if any, from and against the
Shareholders.
<PAGE>
-27-
7.5 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 7.1 or
7.3, 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 Section 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.
7.6 DIRECT CLAIMS. In the case of a Direct Claim, the Indemnifying Party shall
have thirty (30) 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 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 thirty (30) 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.
7.7 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
<PAGE>
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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 dispute shall be referred
to and finally settled by binding arbitration from which there shall be no
appeal.
7.8 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.
7.9 SET-OFF. The Purchaser shall be entitled to set-off the amount of any Claim
submitted under Section 7.1 or due under Section 7.3 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 8
DISPUTE RESOLUTION
8.1 JURISDICTION. Any dispute, controversy or claim arising out of or in
connection with this Agreement shall be brought exclusively before the District
Court in Amsterdam, the Netherlands, which shall have exclusive competence and
jurisdiction.
ARTICLE 9
NON COMPETITION
9.1 NON COMPETITION. Neither the Vendors nor any of the Shareholders shall,
either during or within two (2) years after the last payment as contemplated by
Article 2 hereof has been made, directly or indirectly, be employed by or offer
services, in any manner whatsoever, to
<PAGE>
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competitors of Kwatrobox and/or the Subsidiaries engaged in activities competing
with the Business, either on it or his own account or for others, in Europe.
9.2 PENALTY CLAUSE. In the event that a Vendor or each of Messrs. Paul Stok,
Rene Brouwer, Kees Van Veen and Gijs Pol breaches this Article 9, the breaching
Party will become liable and owe to the Purchaser, or as it may direct in
writing, a penalty that may not be mitigated in the amount of Two Hundred and
Fifty Thousand (250,000) Guilders for each breach and a penalty that may not be
mitigated of Twenty-Five Thousand (25,000) Guilders for each day, or part
thereof, that the breach continues after having received a notice of default in
respect thereof.
ARTICLE 10
RECESSION AND NOVATION
10.1 OLD SHARE PURCHASE AGREEMENT. Each of Peces, Rendex, Van Veen, Wodan,
v-Wholesaler.com B.V. on behalf of Acquireco, Gijs Pol, Paul Stok, Rene Brouwer,
Kees Van Veen, v-Wholesaler.com, Inc. and e-Auction Global Trading Inc.
(collectively, the "Initial Parties") agree that the Old Share Purchase
Agreement is hereby rescinded and novated and all rights, liabilities and
obligations whatsoever of the Initial Parties arising under, from or in
connection with the Old Purchase Agreement are hereby extinguished and rendered
null and void ab initio.
ARTICLE 11
GENERAL
11.1 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.
11.2 EXPENSES. Unless otherwise provided in this Agreement, each of the Parties
hereto shall bear its own expenses (including those of legal counsel and
advisors) incurred in connection with this Agreement and the transactions
contemplated by this Agreement. Notwithstanding the foregoing, the Purchaser
shall be liable for the costs associated with the transfer of the Shares by
notarial deed up to an amount not to exceed Ten Thousand (10,000) Guilders in
Netherlands funds. If the costs associated with the transfer of the Shares by
notarial deed exceed such amount, then any additional costs shall be borne
equally by the Purchaser and the Vendors.
11.3 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, including, for greater certainty,
the Old Share Purchase Agreement, 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 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.
11.4 TIME OF THE ESSENCE. Time shall be of the essence of this Agreement.
<PAGE>
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11.5 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 as follows:
To the Vendors at:
Kannaalweg 22
3526 KM, Utrecht,
Netherlands
Attention: Gijs Pol
Facsimile No.: (31) 29-738-7233
To the Purchaser or e-Auction at:
161 Bay Street
BCE Place, Suite 4700
Toronto, Ontario Canada
M5J 2S7
Attention: Chief Financial Officer,
e-Auction Global Trading Inc.
Facsimile No.: (416) 364-9085
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.
11.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Netherlands.
11.7 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.
11.8 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).
<PAGE>
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11.9 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.
11.10 NON-MERGER. Each Party hereby agrees that all provisions of this
Agreement, other than the representations and warranties contained in Section 6,
and the indemnities in Sections 7.1 and 7.3 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.
11.11 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 signatures received by a
receiving fax machine as original signatures of the Parties.
11.12 EMPLOYEES. The Purchaser agrees that it has no present intention to cause
the forced dismissal of any Employee due solely to the transactions contemplated
by this Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the Parties
hereto.
V-WHOLESALER.COM B.V.
Per:
--------------------------
Authorized Signing Officer
PECES B.V.
Per:
--------------------------
Authorized Signing Officer
RENDEX B.V.
Per:
--------------------------
Authorized Signing Officer
VAN VEEN BOYS B.V.
Per:
<PAGE>
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--------------------------
Authorized Signing Officer
WODAN B.V.
Per:
--------------------------
Authorized Signing Officer
------------------------------
GIJS POL
------------------------------
PAUL STOK
<PAGE>
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------------------------------
RENE BROUWER
------------------------------
KEES VAN VEEN
PARTY TO THIS AGREEMENT only in respect of
the rights and obligations pursuant to
Sections 2.4 and 10.1 herein
E-AUCTION GLOBAL TRADING INC.
Per:
------------------------------
Duly Authorized Signatory
PARTY TO THIS AGREEMENT only in respect of
the rights and obligations pursuant to
Section 10.1 herein
V-WHOLESALER.COM, B.V., on behalf of Acquireco
Per:
------------------------------
Duly Authorized Signatory
PARTY TO THIS AGREEMENT only in respect of
the rights and obligations pursuant to
Section 10.1 herein
V-WHOLESALER.COM, INC.
Per:
------------------------------
Duly Authorized signatory
<PAGE>
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SCHEDULE "1.1(FF)"
PAYMENT DIRECTION
TO: V-WHOLESALER.COM B.V.
--------------------------------------------------------------------------------
Reference is made to a share purchase agreement made as of 0, 2000 (the
"Purchase Agreement") among v-Wholesaler.com B.V. (the "PURCHASER"), Peces B.V.,
Rendex B.V., Van Veen Boys B.V., Wodan B.V., Gijs Pol, Paul Stok, Rene Brouwer
and Kees Van Veen.
Pursuant to section 3.5(b) of the Purchase Agreement, the undersigned
hereby authorize and direct the Purchaser to:
(a) pay such portion of the Purchase Price (as defined in the
Purchase Agreement) to the persons indicated as follows:
A. [0] Guilders to Peces B.V.;
B. [0] Guilders to Rendex B.V.;
C. [0] Guilders to Van Veen Boys B.V.; and
D. [0] Guilders to Wodan B.V.
(b) direct e-Auction Global Trading Inc. to issue the e-Auction
Shares and register such shares in the books of e-Auction as
follows:
A. [0] E-AUCTION SHARES] to Peces B.V.;
B. [0] E-AUCTION SHARES] to Rendex. B.V.;
C. [0] E-AUCTION SHARES] to Van Veen Boys B.V.; and
D. [0] E-AUCTION SHARES] to Wodan B.V.
and this shall be your good, sufficient and irrevocable authority for
so doing.
DATED at[ ], The Netherlands this 0 day of May, 2000.
EACH VENDOR.
Per:
--------------------------
Authorized Signing Officer
