[handwritten] Exhibit 10.45
[handwritten] To the attention of Xx. X. Xxxxxxxxxx
MEMORANDUM OF UNDERSTANDING
BY AND BETWEEN:
The company ROWECOM France, a French simplified corporation, with capital of
2,400,000 francs, with registered offices at xxx xx xx Xxxxxxx - 00000 XXXXXXXX
XXX XXXXXX, represented by the legal representative Xx. Xxxxxxx Xxxxxxx,
Hereinafter referred to as the "SUBSIDIARY"
PARTY OF THE FIRST PART,
AND:
The company ROWECOM GLOBAL HOLDINGS LTD, an American company, with capital of XX
American dollars, with registered offices at [handwritten] 00 Xxxxxxxxx Xxxx,
Xxxxxxxx, XX 00000 XXX, represented herein by Mr. Xxxxxxx Xxxx, specially
authorized for this purpose by the legal representatives of the company, [who
are] domiciled at said registered offices.
Hereinafter referred to as the "PARENT COMPANY"
PARTY OF THE SECOND PART.
[initials]
WHEREAS:
The company ROWECOM France is a French company, a subsidiary of the company
ROWECOM GLOBAL HOLDINGS LTD, an American company.
The company ROWECOM GLOBAL HOLDINGS LTD holds 99% of the capital of the company
ROWECOM France.
In order to meet an urgent need for cash, the company ROWECOM GLOBAL HOLDINGS
LTD has solicited a loan in the amount of 4,000,000 euros from the company
ROWECOM France.
Because French law does not recognize the legal notion of a group as a subject
of law, it requires each of the entities that constitute the group (PARENT
COMPANY and subsidiaries) to pursue its own economic and corporate interest
within the strict limits of its corporate purpose.
The act of favoring an entity of the group to its own detriment constitutes, for
the company's legal representative, the criminal offense of misuse of corporate
assets.
In this case, such a qualification is excluded because the loan granted by the
French SUBSIDIARY fulfills the following characteristics:
- the loan is carried out in the group's interest;
- the French SUBSIDIARY, in terms of the guarantees and compensation
offered by the PARENT COMPANY, incurs no exorbitant risks.
With regard to the urgency presented by the transfer of funds requested by the
PARENT COMPANY.
Having recalled this, the parties agreed on the following:
ARTICLE 1
The SUBSIDIARY grants, this day, to the PARENT COMPANY, which accepts it, under
the conditions, and according to the terms defined herein, a loan whose
principal is FOUR MILLION EUROS (4,000,000 euros), for a period that will expire
on April 30, 2001.
ARTICLE 2
The disbursement of the Loan by the SUBSIDIARY's Bank, for the benefit of the
PARENT COMPANY, will take place, in one lump sum, on Monday March 12, 2001, upon
presentation of this memorandum of understanding, initialed and signed, without
any reservations, by the parties, duly represented as indicated at the start
hereof.
[initials]
ARTICLE 3
The PARENT COMPANY will reimburse the full amount of the loan on one due date,
on April 30, 2001, at the latest, without any foreseeable extension of its
commitment.
The payment will be made in euros to the SUBSIDIARY's Bank, to the SUBSIDIARY
itself, or to any person that it designates to receive the funds.
The payment of any sum due by the PARENT COMPANY pursuant to this contract must
be carried out net of any taxes, withheld at the source or deducted in any
manner, present or future.
ARTICLE 4
As a guaranty for the loaned sum, the PARENT COMPANY hereby declares that it
allocates, in the form of a pledge, 60% of the total amount of corporate
securities that it owns in the capital of the other subsidiaries of the ROWECOM
Group, located outside of the United States of America, in the rest of the world
(REALA).
By irrevocable joint agreement, the parties value 60% of the holding of the
PARENT COMPANY in said subsidiaries at the full amount of the sum loaned, or
4,000,000 euros.
The PARENT COMPANY guarantees the retroactive approval of this pledge by each of
said subsidiaries, for the benefit of the SUBSIDIARY that is making this loan,
for the amount of 60% of their capital;
This collateral, granted by the PARENT COMPANY and accepted by the SUBSIDIARY,
is irrevocable.
However, in order to safeguard the confidentiality of this memorandum of
understanding, the parties undertake to draw up a pledge instrument distinct
from this agreement, within 5 days of the signing hereof; the subsidiaries whose
securities are pledged shall be notified of said instrument.
The SUBSIDIARY will remit to the Bank the articles of incorporation of each of
the companies whose securities, held by the PARENT COMPANY, are pledged in the
amount of 60% for its benefit.
[initials]
ARTICLE 5
The PARENT COMPANY declares that it has not been involved in any ruling or
measure whatsoever likely to hinder its capacity, and that the aforementioned
corporate securities remitted as collateral have not been the subject of any
other pledge agreement or legal or extra-legal protective measure.
The fees related to the pledges will be the exclusive responsibility of the
PARENT COMPANY, which undertakes thereto.
ARTICLE 6
If the PARENT COMPANY does not reimburse the full amount of the sum loaned,
I.E., 4,000,000 euros, on April 30, 2001 at the latest, to the SUBSIDIARY's
Bank, to the SUBSIDIARY itself, or to any person that it designates to receive
the funds, the PARENT COMPANY irrevocably undertakes to assign to the SUBSIDIARY
or to any person it shall substitute, 60% of the corporate securities that it
holds in the capital of each of the subsidiaries of the ROWECOM Group, located
outside of the United States of America, in the rest of the world (REALA).
The list of relevant companies is and will remain attached to this memorandum of
understanding as an integral part thereof.
By irrevocable joint agreement, the parties value the investment of the PARENT
COMPANY in said subsidiaries, subject of this assignment commitment, at the full
amount of the loaned sum, or 4,000,000 euros.
The PARENT COMPANY declares that it fully owns the securities, subject of this
assignment commitment, that it has free access thereto and that they are not
mortgaged by any surety or any restriction of any kind on their free
negotiability, and that it will ensure that these features are maintained for
the full duration of the commitment.
The PARENT COMPANY guarantees the approval (if necessary) of the SUBSIDIARY as a
new associate of the subsidiaries whose securities are the subject of this
assignment commitment.
The SUBSIDIARY accepts this assignment commitment as such.
The expiration of the period to reimburse the loan, set by Article 3 of this
memorandum of understanding at April 30, 2001, will entail the definitive and
irrevocable assignment of the securities that are the subject of this
commitment, for the benefit of the SUBSIDIARY, in return for the definitive
abandonment, by the latter, of the amount of the loan hereby granted to the
PARENT COMPANY.
[initials]
The preparation of the order to move the securities, and the relevant
formalities, will take place in the month following the expiration of the date
for reimbursing the loan, I.E., at the latest on May 31, 2001.
The SUBSIDIARY specifies, and the PARENT COMPANY acknowledges, that the loan
that is the subject of Article 1 herein would not have been granted if the
PARENT COMPANY had not concluded this assignment commitment, for the benefit of
the former, irrevocably; this commitment determined the agreement of the
SUBSIDIARY, which grants the credit.
ARTICLE 7
The PARENT COMPANY undertakes, for the duration of this commitment, to not
grant, for any surety pursuant to a present or future loan debt or for any
surety pursuant to any guarantee commitment undersigned by it or upon its order
with any other party, present or future, any mortgage, pledge, collateral or
other right of any type on all or part of the assets, tangible or intangible, of
the subsidiaries of the ROWECOM Group located outside of the United States, in
the rest of the world (REALA), which are the subject of the assignment
commitment contained in Article 6 herein.
ARTICLE 8
The parties agree that this loan, pledge and assignment commitment agreement is
irrevocable.
A detailed private agreement that the parties undertake to initial and sign
within five days following the conclusion of this memorandum of understanding
will be prepared.
ARTICLE 9
Expenses associated with this document and subsequent documents will be the
exclusive responsibility of the PARENT COMPANY, which undertakes thereto.
To the extent that the SUBSIDIARY advances certain expenses, such as expert
fees, registration charges, etc., they will be reimbursed upon first request.
ARTICLE 10
This memorandum of understanding is expressly subject to French law and the
competent courts will be exclusively French courts.
[initials]
ARTICLE 11
For the execution of this document and subsequent documents, domicile is elected
by the SUBSIDIARY and the PARENT COMPANY at their respective registered offices.
VILLEBON SUR XXXXXX, on:
[signature] [signature]
ROWECOM France company ROWECOM GLOBAL HOLDINGS LTD company
Duly represented by Duly represented by
Xx. Xxxxxxx Xxxxxxx Mr. Xxxxxxx Xxxx, specially authorized.
[handwritten]
Xxxx Xxxxxxxxxx
Chief Financial Officer
[handwritten]
[signature]
Xxxxx Xxxxxxxxx
Chief Operating Officer
Board Member: ROWECOM
GLOBAL HOLDINGS LTD
