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Exhibit 10.9
STOCK PURCHASE AGREEMENT
DATED AUGUST 26, 1999
BY AND AMONG
WORLD COMMERCE ONLINE, INC.,
a Nevada corporation,
FRESH PRODUCTS NETWORK B.V.,
an entity organized under the laws of the Netherlands,
OMNIFLORA INTERNATIONAL LTD.,
an entity organized under the laws of the British Virgin Islands,
JOBO HOLDING B.V.,
an entity organized under the laws of the Netherlands,
AND
XXXX XXX XXXX,
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is entered into as of
the 26th day of August, 1999, by and among WORLD COMMERCE ONLINE, INC., a Nevada
corporation (the "Purchaser"), FRESH PRODUCTS NETWORK B.V., an entity organized
under the laws of the Netherlands (the "Company"), OMNIFLORA INTERNATIONAL LTD.,
an entity organized under the laws of the British Virgin Islands ("Omniflora"),
JOBO HOLDING B.V., an entity organized under the laws of the Netherlands (the
"Stockholder") and XXXX XXX XXXX, a citizen of the Netherlands ("van Beek").
RECITALS:
WHEREAS, the Stockholder owns all of the issued and outstanding shares
of common stock, par value 1 Euro per share, of the Company (the "Company Common
Stock"); and
WHEREAS, the Purchaser desires to acquire from the Stockholder, and the
Stockholder desires to sell or to cause to be transferred to the Purchaser, the
Company Common Stock, pursuant to the terms of this Agreement; and
WHEREAS, the Purchaser and the Company together with the Stockholder
have negotiated mutually acceptable terms and conditions for such acquisition,
pursuant to which the Company will become a wholly owned subsidiary of the
Purchaser and the Purchaser shall acquire the equity interest in the Company
previously represented by all of the Company Common Stock, as hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
hereby, the representations, warranties, covenants and agreements herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Purchaser, the Company,
Omniflora, van Beek, and the Stockholder do hereby agree as follows:
ARTICLE I
Acquisition of the Company Common Stock
1.1 Acquisition of the Company Common Stock. Upon the terms and subject
to the conditions set forth in this Agreement, the Purchaser shall acquire the
Company Common Stock currently held by the Stockholder, which represents all of
the issued and outstanding shares of common stock of the Company. As
consideration for the Company Common Stock, the Stockholder shall receive the
consideration set forth in Section 1.2 below. In furtherance thereof, the
Stockholder shall, simultaneously with the execution of this Agreement, deliver
to the Purchaser the certificate(s) representing the Company Common Stock, duly
endorsed for transfer or accompanied by stock powers executed in blank for
transfer.
1.2 Acquisition Consideration. Pursuant to the terms and conditions of
Sections 1.3, 1.4, and 1.5, and upon the surrender of the certificate(s)
representing such Company Common Stock in accordance with the provisions of
Section 1.1 above: (i) the Stockholder and Omniflora shall each receive one-half
of the Acquisition Shares (as defined in Section 1.3 of this Agreement); (ii)
the Purchaser shall assume and become liable for the Assumed Liabilities (as
defined in Section 1.4 of this Agreement); and (iii) the Stockholder shall be
entitled to receive the Earn Out Shares (as defined in Section 1.5 of this
Agreement).
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1.3 Acquisition Shares and Agreed Value. At the Closing, the Purchaser
shall issue and deliver, or request its transfer agent to so deliver,
certificate(s) representing One Hundred Thousand shares of common stock, par
value of $.001 per share, of the Purchaser (the "Acquisition Shares").
1.4 Assumed Liabilities. At the Closing, the Purchaser shall assume and
become liable for the payment of the debt owed by the Company to van Beek
Bloemen B.V. in the amount of HFL 727.984,98 (the "Assumed Liabilities").
1.5 Earn Out Consideration. As additional consideration for the
consummation of the transactions contemplated by this Agreement, the Stockholder
shall be eligible to receive additional consideration (the "Earn Out") in an
amount equal to One Hundred Thousand shares of common stock, par value of $.001
per share, of the Purchaser (the "Earn Out Shares"). The Stockholder is eligible
to receive the Earn Out if, and only if, by December 31, 2000 (the "Earn Out
Period"), the Stockholder achieves the Milestone. For purposes of this section,
the term "Milestone" shall mean that at least HFL 30,000,000 in turnover from
growers and primary suppliers of cut flowers shall have been processed through
the Company's existing model, as such is revised in the ordinary course of
business. The Purchaser shall conduct an audit to determine if the Milestone has
been achieved within thirty (30) days after the end of the Earn Out Period. If
the Milestone has been achieved, the Purchaser shall issue and deliver to the
Stockholder a certificate representing the Earn Out Shares within ten (10)
business days following the date of receipt of the results of Purchaser's audit.
If the Milestone has not been achieved, the Purchaser shall deliver to the
Stockholder a statement that the Milestone has not been achieved along with a
copy of the audit. The Milestone shall be reduced to the extent the Purchaser
alters its business model after the date of this Agreement.
ARTICLE II
Representations and Warranties of
the Company, Omniflora, van Beek and the Stockholder
The Company, Omniflora, van Beek and the Stockholder, jointly and
severally, make the following representations and warranties to the Purchaser,
each of which shall be deemed material (and the Purchaser, in executing,
delivering and consummating this Agreement, has relied and will rely upon the
correctness and completeness of each of such representations and warranties):
2.1 Valid Corporate Existence; Qualification. The Company is duly
organized, validly existing and in good standing under the laws of the country
of the Netherlands. The Company has the corporate power to carry on its
businesses as now conducted and to own its assets. The Company is duly qualified
to conduct business and is in good standing as a foreign corporation in those
jurisdictions in which the Company is required to qualify in order to own its
assets or properties or to carry on its businesses as now conducted, except
where the failure to qualify would not have a material adverse effect on the
business of the Company taken as a whole, and there has not been any claim by
any other jurisdiction to the effect that the Company is required to qualify or
otherwise be authorized to do business as a foreign corporation therein. The
copies of the Company's good standing certificates or certificates of existence
(issued by the appropriate authority), Articles of Incorporation (certified by
the appropriate authority) and By-Laws (certified by the Secretary), as amended
to date, which constitute a part of Schedule 2.1 are true and complete copies of
those documents as now in effect. The minute books of the Company contain
accurate records of all meetings of its Boards of Directors and stockholders
since the date of incorporation, and accurately reflect all material
transactions referred to therein. At Closing, all such minute books and records
will be in the possession of the Company.
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2.2 Capitalization. The authorized capital stock of the Company
consists of 100,000 shares of common stock, and 0 shares of preferred stock, par
value 1 Euro per share, of which there are 20,000 shares of common stock and no
shares of preferred stock issued and outstanding. All of such outstanding shares
are duly authorized, validly issued, fully paid and nonassessable. There are no
subscriptions, options, warrants, rights or calls or other commitments or
agreements to which the Company, Omniflora, van Beek or the Stockholder are a
party or by which such persons are bound, calling for the issuance, transfer,
sale or other disposition of any class of securities of the Company. There are
no outstanding securities of the Company convertible or exchangeable, actually
or contingently, into shares of common stock, or any other securities of the
Company.
2.3 No Subsidiaries. There are no corporations, partnerships or other
business entities controlled by the Company (collectively, "Subsidiaries"). As
used in this Agreement, "controlled by" means: (i) the ownership of not less
than fifty percent (50%) of the voting securities or other interests of a
corporation, partnership or other business entity; or (ii) the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a corporation, partnership or other business entity,
whether through the ownership of voting shares, by contract or otherwise. The
Company has not made any investment in, and does not own, any capital stock of,
or any other proprietary interest in, any other corporation, partnership or
other business entity that is not reflected on its books and records.
2.4 Consents. There are no consents of governmental or other regulatory
agencies, foreign or domestic or of other parties required to be received by or
on the part of the Company, Omniflora, van Beek or the Stockholder to enable
such persons to enter into and carry out this Agreement in all material
respects.
2.5 Corporate Authority; Binding Nature of Agreement; Title to the
Company Common Stock, etc. The Company, Omniflora, van Beek and the Stockholder
have the power to enter into this Agreement and to carry out its or their
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by each of the the Company's, Omniflora's and the Stockholder's Board of
Directors and upon execution of this Agreement by the Company, Omniflora and the
Stockholder, no other corporate proceeding on the part of the Company, Omniflora
or the Stockholder, respectfully, is necessary to authorize the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. This Agreement constitutes the valid and binding agreement of the
Company, Omniflora, van Beek and the Stockholder and, assuming that this
Agreement constitutes the legal, valid and binding agreement of the Purchaser,
is enforceable in accordance with its terms subject to applicable bankruptcy,
reorganization, insolvency and similar laws affecting the rights of creditors
and subject to general principles of equity. Omniflora, van Beek and the
Stockholder represent and warrant with respect to the shares of Company Common
Stock that: (i) the Stockholder is the sole record and beneficial owner of such
shares free and clear of all manner of liens, charges, encumbrances, claims
restrictions and assessments whatsoever; and (ii) the Stockholder has good and
marketable title to such shares and the absolute and unqualified right to sell,
transfer and deliver such shares to the Purchaser.
2.6 Financial Statements. Attached hereto as Schedule 2.6 are the
unaudited financial statements (including Balance Sheet, Income Statement and
Statement of Cash Flows) for the Company as of July 31, 1999 (the "Financial
Statements") all of which fairly reflect, in all material respects, the
financial condition and results of operations of the Company as of the date
thereof. Without limitation of the foregoing, the Company does not have any
material liabilities, debts, or obligations, fixed or contingent, known or
unknown, except to the extent reflected in such financial statements.
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2.7 Actions Since Financial Statements Date. Since the date of the
Financial Statements (the "Financial Statements Date"), the Company has not: (i)
issued or sold, or agreed to issue or sell any of its capital stock, options,
warrants, rights or calls to purchase such stock, any securities convertible or
exchangeable into such capital stock or other corporate securities, or effected
any subdivision or other recapitalization affecting its capital stock; (ii)
incurred any material absolute obligation or liability, except those arising in
the ordinary and usual course of its business that would normally be reflected
on the books of the Company; (iii) incurred any material contingent obligation
or liability, except those arising in the ordinary and usual course of its
business; (iv) discharged or satisfied any lien or encumbrance, except in the
ordinary and usual course of business, or paid or satisfied any liability,
absolute or contingent, other than liabilities as at the Financial Statements
Date in the ordinary and usual course of business; (v) made any wage or salary
increases or granted any bonuses other than wage and salary increases and
bonuses granted in accordance with its normal salary increase and bonus
policies; (vi) mortgaged, pledged or subjected to any lien or other encumbrance
any of its properties or assets, or permitted any of its property or assets to
be subjected to any lien or other encumbrance, except in the ordinary and usual
course of business; (vii) sold, assigned or transferred any of its properties or
assets, except in the ordinary and usual course of business; (viii) entered into
any material transaction not in the ordinary and usual course of business; (ix)
waived any rights of material value, or canceled, modified or waived any
indebtedness for borrowed money held by it, except in the ordinary and usual
course of business; (x) except in the ordinary and usual course of business made
any loans or advances to any person, or assumed, guaranteed, or otherwise become
responsible for the obligations of any person; or (xi) incurred any indebtedness
for borrowed money (except for endorsement, for collection or deposit of
negotiable instruments received in the ordinary and usual course of business).
To the extent that any moneys are outstanding under any line of credit of the
Company, all such funds were utilized in the ordinary and usual course of
business. Since the Financial Statements Date the Company has not declared, paid
or set aside any dividends (other than normal recurring dividends paid in the
ordinary course of business and in the same proportions as the prior year) or
other distributions or payments on its capital stock, or redeemed or
repurchased, or agreed to redeem or repurchase, any shares of its capital stock.
2.8 Absence of Material Changes. There has not been any material
change, whether or not adverse, in the assets, properties, operations or
financial condition of the Company and/or since the Financial Statements Date no
event has occurred, other than in the ordinary and usual course of business,
which could be reasonably expected to have a material effect upon the business
of the Company, and neither the Company nor the Stockholder knows of any
development or threatened development of a nature that will have, or which could
be reasonably expected to have, a material effect upon the business of the
Company or upon any of its assets, properties, operations or financial
condition, taken as a whole, including, without limitation, the loss of any
licenses or permits, suppliers, customers or employees, which loss would be of a
material nature.
2.9 Ownership of Assets; Trademarks, etc. The Company owns outright,
and has good and marketable title to all of its assets (including all computer
software and all source and object codes thereto, and all assets reflected in
the Financial Statements, except as the same may have been disposed of in the
ordinary course of business since the Financial Statements Date), free and clear
of all liens, mortgages, pledges, conditional sales agreements, restrictions on
transfer or other encumbrances or ownership rights. The Company has the valid
right to utilize all intellectual property utilized in its business operations.
The Company has no interest as owner or licensee in any patents, copyrights,
trademarks or trade names relating to any property utilized by the Company in
its business operations. No other person, firm or corporation has any
proprietary or other interest in any such property. The Company is not a party
to or bound by any license or agreement requiring the payment to any person,
firm or corporation of any royalty. To the knowledge of the Stockholder the
Company is not infringing upon any patent, copyright, trade name or trademark or
otherwise violating the rights of any third party with respect thereto, and no
proceedings have
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been instituted or are threatened and no claim has been received by the Company
or the Stockholder alleging any such violation.
2.10 Insurance. The Company maintains, has in full force and effect,
and has paid all premiums in respect of policies of fire, liability and other
forms of insurance held by the Company and covering its assets and business
against such hazards and in such amounts as are normal and customary for
businesses of similar size, scope and nature. Neither the Company, Omniflora,
van Beek nor the Stockholder knows of any state of facts, or of the occurrence
of any event which might reasonably: (i) form the basis for a valid claim for
any material damages against the Company not fully covered by insurance for
liability on account of any express or implied warranty or tortious omission or
commission, or (ii) result in a material increase in insurance premiums of the
Company on a retroactive or prospective basis. Neither the Company nor the
Stockholder knows of any state of facts concerning any claim which an employee
may have against the Company that is not fully covered by insurance (including
any medically related illness).
2.11 Litigation, Compliance with Laws. There are no actions, suits,
proceedings or governmental investigations relating to the Company or to any of
its properties, assets or business filed or commenced and pending or, to the
knowledge of the Company, Omniflora, van Beek and the Stockholder, threatened,
or any order, injunction, award or decree outstanding, against the Company or
against or relating to any of its properties, assets or business; and neither
the Company, Omniflora, van Beek nor the Stockholder knows of any basis for any
such action, suits or proceedings which governmental investigations, orders,
injunctions or decrees could reasonably be expected to have a material adverse
effect on the business, financial condition or operations of the Company. The
Company is not in violation of any domestic or foreign law, regulation,
ordinance, order, injunction, decree, award, or other requirement of any
governmental body, court or arbitrator relating to its properties, assets or
business, the violation of which would have a material adverse effect on the
Company.
2.12 Real Property. The Company does not own any real estate or any
interest therein, except to the extent of its interest as lessee under the lease
for business premises (the "Lease", a true and complete copy of which is
attached hereto as Schedule 2.12). The Company (and, to the best of the
Stockholder's knowledge, the landlord thereunder) is presently in compliance
with all of its obligations under the Lease, and the premises leased thereunder
are in good condition (reasonable wear and tear accepted), and are adequate for
the operation of the business of the Company as presently conducted. No consent
of the landlord under the lease which has not previously been obtained is
required in connection with the transactions contemplated by this Agreement.
2.13 Agreements and Obligations, Performance. The Company is not a
party to, nor is bound by any: (i) written or oral contract, arrangement,
commitment or understanding which involves aggregate annual payments in excess
of One Thousand Dollars ($1,000) that cannot be canceled on thirty (30) days or
less notice without penalty or premium or any continuing obligation or
liability; (ii) contractual obligation or contractual liability of any kind to
the Stockholder; (iii) contract, arrangement, commitment or understanding with
its customers, suppliers or the Stockholder or any officer, employee,
shareholder, director, representative or agent thereof for the repurchase of
products, (other than warranty liability), sharing of fees, the rebating of
charges to such customers, bribes, kickbacks from such customers or other
similar arrangements; (iv) contract for the purchase or sale of any materials,
products or supplies which contain, or which commits or will commit it for a
fixed term; (v) contract of employment with any officer, employee, consultant or
independent contractor not terminable at will without penalty or premium or any
continuing obligation or liability; (vi) deferred compensation bonus or
incentive plan or agreement not cancelable at will without penalty or premium or
any continuing obligation or liability; (vii) union or other collective
bargaining agreement; (viii) agreement, commitment or understanding relating to
indebtedness for borrowed money other than trade payables incurred in the
ordinary course of business and reflected on
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the books and records of the Company; (ix) contract which, by its terms,
requires the consent of any party thereto to the consummation of the
transactions contemplated hereby; (x) contract containing covenants limiting the
freedom of the Company to engage or compete in any line of business or with any
person in any geographical area, except for manufacturer's representatives or
distribution agreements; (xi) contract or option relating to the acquisition or
sale of any business; (xii) voting trust agreement or similar stockholder's
agreement; (xiii) option for the purchase of any asset, tangible or intangible;
or (xiv) other contract, agreement, commitment or understanding which materially
and adversely affects any of its properties, assets or business, whether
directly or indirectly, or which was entered into other than in the ordinary
course of business (all of the above, collectively, the "Listed Agreements").
The Company has in all material respects performed all obligations required to
be performed by it to date under all of the Listed Agreements, is not in default
in any material respect under any of the Listed Agreements, and has received no
notice of any default or alleged default hereunder which has not heretofore been
cured or which notice has not heretofore been withdrawn. Neither the Company nor
the Stockholder knows of any material default under any of the Listed Agreements
by any other party thereto or by any other person, firm or corporation bound
thereunder.
2.14 Accounts and Notes Receivable. Schedule 2.14 sets forth a true and
correct copy of all accounts and notes receivable of the Company as of the date
of this Agreement. All of the accounts and notes receivable reflected in the
Financial Statements of the Company were or will have been created in the
ordinary course of its business, from the sale of services or goods, and neither
the Company nor the Stockholder knows of any valid defense or right of set-off
to the rights of the Company to collect such accounts receivable in the full
amounts shown.
2.15 Permits and Licenses. Schedule 2.15 sets forth all permits,
licenses, orders, franchises and approvals from all domestic and foreign
governmental regulatory bodies held by the Company. The Company has all permits,
licenses, orders, franchises and approvals of all domestic and foreign
governmental or regulatory bodies, whose failure to be held would materially and
adversely affect the Company's ability to carry on its business as presently
conducted and such permits, licenses, orders, franchises and approvals are in
full force and effect, and no suspension or cancellation of any of such other
permits, licenses, etc. is pending or to the knowledge of the Company
threatened; and the Company is in compliance in all material respects with all
requirements, standards and procedures of the domestic and foreign governmental
bodies which have issued such permits, licenses, orders, franchises and
approvals. Schedule 2.15 also sets forth a brief description (including all
vehicle identification numbers) of all vans, automobiles, trucks or other
vehicles owned or leased by the Company and the jurisdiction in which such
vehicle is registered or titled.
2.16 Banking Arrangements. Schedule 2.16 sets forth the name of each
bank in or with which the Company has an account, credit line or safety deposit
box, and a brief description of each such account, credit line or safety deposit
box, including the names of all persons currently authorized to draw thereon or
having access thereto; and the names of all persons, if any, now holding powers
of attorney from the Company and a summary statement of the terms thereof.
2.17 Interest in Assets. Neither Omniflora, van Beek, the Stockholder
nor any affiliate(s) of Omniflora, van Beek or the Stockholder own any property
or rights, tangible or intangible, used in or related, directly or indirectly,
to the business of the Company. As used herein, "affiliate" means any person,
corporation or other entity (other than the Company) which directly or
indirectly controls, is controlled by or is under common control with another
person or entity.
2.18 Employee Benefit Plans. The Company does not have any policies or
plans, whether written or not, that provide for health, dental or vision
benefits, vacation benefits, severance benefits, leave
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rights or other benefits to its employees. No payment required to be made to any
employee associated with the Company as a result of the transactions
contemplated hereby under any contract or otherwise.
2.19 No Breach. Neither the execution and delivery of this Agreement
nor compliance by the Company, Omniflora, van Beek and the Stockholder with any
of the provisions hereof nor the consummation of the transactions contemplated
hereby, will:
(a) violate or conflict with any provision of the Articles of
Incorporation or By-laws of the Company, Omniflora or the Stockholder;
(b) except for manufacturer's representatives and distribution
agreements, violate or, alone or with notice or the passage of time, result in
the material breach or termination of, or otherwise give any contracting party
the right to terminate, or declare a default under, the terms of any material
agreement or, other material document or undertaking, oral or written to which
any of the Company, Omniflora, van Beek or the Stockholder is a party or by
which any of them or any of their respective properties or assets may be bound
(except for such violations, conflicts, breaches or defaults as to which
required waivers or consents by other parties have been, or will, prior to the
Closing, be, obtained);
(c) result in the creation of any material lien, security
interest, charge or encumbrance upon any of the material properties or assets of
the Company, Omniflora, van Beek or the Stockholder or pursuant to the terms of
any such agreement or instrument;
(d) violate any judgment, order, injunction, decree or award
against, or binding upon, the Company, Omniflora, van Beek or the Stockholder or
upon their respective properties or assets; or
(e) to the best of the Company's, Omniflora's, van Beek's or
the Stockholder's knowledge, violate any law or regulation of any jurisdiction
relating to the Company or the Stockholder or any of their securities, assets or
properties.
2.20 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on directly with the
Purchaser by the Company, van Beek and the Stockholder without the intervention
of any broker, finder, investment banker or other third party. Neither the
Company, van Beek nor the Stockholder has engaged, consented to, or authorized
any broker, finder, investment banker or other third party to act on its or his
behalf, directly or indirectly, as a broker or finder in connection with the
transactions contemplated by this Agreement, and van Beek and the Stockholder
agree to indemnify the Purchaser against, and to hold it harmless from any claim
for brokerage or similar commission or other compensation which may be made
against the Purchaser by any third party in connection with any transactions
contemplated hereby which claim is based upon any action by the Company, van
Beek or the Stockholder.
2.21 Labor Discussions. The Company is not, and nor has it ever been, a
party to any agreement, collective bargaining or otherwise, with any party
regarding the rates of pay or working conditions of any of the Company's
employees, nor obligated under any agreement to recognize or bargain with any
labor organization or union, nor involved in any labor discussions with any unit
or group seeking to become the bargaining unit for any of its employees.
2.22 Change of Name. The Company has not conducted business under any
name other than Fresh Products Network B.V.
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2.23 Environmental Matters.
(i) The Company has not used, generated, operated, processed,
distributed, recycled, transported, used, treated, stored, handled, emitted,
discharged, released or disposed of (or caused any person or entity to do any of
the foregoing or assisted any person or entity in doing any of the foregoing)
any Hazardous Materials on the property used by the Company, or any other
property, except for those Hazardous Materials commonly used for office and
administrative purposes, but only so long as the quantities thereof are in
compliance with Environmental Laws, and do not pose a threat to public health of
the environment.
For purposes of this Section 2.23, the following terms shall
have the following meanings:
"Environmental Law" means any federal, state or local law,
statute, ordinance, code, rule, regulation, license, authorization, decision,
order, injunction, decree, or rule of common law, and any judicial
interpretation of any of the foregoing, which pertains to health, safety, any
Hazardous Materials, or the environment (including but not limited to ground or
air or water or noise pollution or contamination, natural resources, and
underground or above ground tanks) and shall include without limitation, the
Solid Waste Disposal Act, 42 U.S.C. ss. 6901 et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. ss.
9601 et seq. ("CERCLA"), as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"); the Hazardous Materials Transportation
Act, 49 U.S.C. ss. 1801 et seq.; the Federal Water Pollution Control Act, 33
U.S.C. ss. 1251 et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the
Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq.; the Medical Waste
Tracking Act, 42 U.S.C. ss. 6992 et. seq.; the Occupational Safety and Health
Act 29 U.S.C. ss. 651-678; and the Safe Drinking Water Act, 42 U.S.C. ss.300f et
seq.
"Hazardous Materials" means any substance, whether solid,
liquid or gaseous which is listed, defined or regulated as a "hazardous
substance", "hazardous waste", "hazardous constituent", "Medical waste" or
"solid waste", or otherwise classified as a hazardous, toxic or regulated
substance, in or pursuant to any Environmental Law; or which is or contains
asbestos, radon, methane, infectious waste, any polychlorinated biphenyl, urea
formaldehyde foam insulation explosive or radioactive material, or motor fuel or
other petroleum hydrocarbons; or which causes or poses a threat to cause
contamination or a nuisance, or a hazard to the environment or to the health or
safety of persons.
"On" or "on", means "on, in or under, at, above or about."
"Environmental Permit" means all permits authorizations or
certifications required by any Environmental Law to occupy, operate, use or
conduct activities at property used by the Company or to transport, recycle or
dispose of materials off-site.
"Environmental Claim" means any investigative, enforcement,
cleanup, removal, containment, remedial or other private or governmental or
regulatory action including, but not limited to any information request letters,
at any time threatened, instituted or completed pursuant to any applicable
Environmental Law, against the Company or against or with respect to property
used by the Company, and any claim at any time threatened or made by any person
against the Company or against or with respect to property used by the Company,
or any prior use, operation or ownership of property used by the Company,
relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from or in any way arising in connection with any Hazardous Material
or any Environmental Law.
(ii) There are no underground storage tanks, sumps or
cesspools on the property used by the Company;
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(iii) The Company has received no notice and has no knowledge
of any Environmental Claim relating to any property used by the Company or the
business operated by the Company;
(iv) The Company has received and is in compliance with all
applicable Environmental Permits.
2.24 Untrue or Omitted Facts. No representation, warranty or statement
by the Company, Omniflora, van Beek or the Stockholder in this Agreement
contains any untrue statement of a material fact, or omits or will omit to state
a fact necessary in order to make such representations, warranties or statements
not materially misleading. Without limitation of the foregoing, there is no fact
known to the either the Company, Omniflora, van Beek or the Stockholder that has
had, or which may be reasonably expected to have, a material adverse effect on
the Company or any of its assets, properties, operations or businesses and that
has not been disclosed in writing to the Purchaser.
2.25 Investment Representation. Omniflora and the Stockholder each
hereby represent that they understand that the transaction contemplated by this
Agreement is to be carried out as a transaction exempt from registration under
the Securities Act of 1933, as amended (the "Act") and, accordingly neither the
Acquisition Shares nor the Earn Out Shares (collectively, the "Shares") will
have been registered under the Act at the time of Closing. Omniflora and the
Stockholder each further represent that they are acquiring the Shares for
investment purposes only and not with a view to or for resale in connection with
any distribution of the Shares, nor with any present intention of distribution
(within the meaning of the Act) of the Shares. Omniflora and the Stockholder
each understands that because the Shares will not have been registered under the
Act, the Purchaser will not permit the transfer of such Shares without
registration under the Act, or upon the issuance to the Purchaser of a favorable
opinion of its counsel or of the submission to the Purchaser of such other
evidence as may be satisfactory to counsel for the Purchaser, in either case, to
the effect that any such transfer, whether pursuant to Rule 144 of the Act or
otherwise, shall not be in violation of the Act, and any applicable state
securities laws, and that the share certificates representing such Shares will
be issued with a restrictive legend providing notice of such restriction.
2.26 Access to Information. Omniflora and the Stockholder each hereby
represent and warrant to the Purchaser that they have had an opportunity to ask
questions of, and receive answers from, appropriate officers and representatives
of the Purchaser concerning the terms and conditions of the issuance of the
Shares and to obtain any additional information concerning the Purchaser which
they have requested. In addition, Omniflora and the Stockholder each represent
and warrant that the Purchaser has made available for inspection by them various
documents connected with the Purchaser's business and has not refused in any way
to permit them to inspect any document requested to be inspected by them.
ARTICLE III
Representations and Warranties of Purchaser
The Purchaser makes the following representations and warranties to the
Company, Omniflora, van Beek and the Stockholder, each of which shall be deemed
material (and the Company, Omniflora, van Beek and the Stockholder, in
executing, delivering and consummating this Agreement, have relied and will rely
upon the correctness and completeness of each of such representations and
warranties):
3.1 Valid Corporate Existence; Qualification. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada. The Purchaser has the
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corporate power to carry on its business as now conducted and to own its assets.
The Purchaser is duly qualified to conduct business and is in good standing as a
foreign corporation in those jurisdictions in which it is required to qualify in
order to own its assets or properties or to carry on its business as now
conducted, and there has not been any claim by any other jurisdiction to the
effect that the Purchaser is required to qualify or otherwise be, authorized to
do business as a foreign corporation therein.
3.2 Consents. There are no consents of governmental or other regulatory
agencies, foreign or domestic, or of other parties, other than the consent of
Interprise Technology Partners, L.P., required to be received by or on the part
of the Purchaser to enable the purchaser to enter into and carry out this
Agreement in all material respects.
3.3 Corporate Authority; Shares Validly Issued; Binding Nature of
Agreement. The Purchaser has the power to enter into this Agreement and to carry
out its obligations hereunder. The execution and delivery of this Agreement and
the consummation of the transactions contemplated have been duly authorized by
the Purchaser's Board of Directors and no other corporate proceeding on the part
of the Purchaser will be necessary to authorize the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby.
This Agreement constitutes the valid and binding agreement of the Purchaser and,
assuming that this Agreement constitutes the legal, valid and binding agreement
of the other parties, is enforceable in accordance with its terms subject to
applicable bankruptcy, insolvency and similar laws affecting the rights of
creditors and subject to general principles of equity. The Shares have been duly
authorized and when issued shall be outstanding, fully paid and nonassessable.
3.4 No Breach. Provided all required consents have been obtained,
neither the execution and delivery of this Agreement nor compliance by the
Purchaser with any of the provisions hereof nor the consummation of the
transactions contemplated hereby, will:
(a) violate or conflict with any provisions of the Certificate
of Incorporation or By-Laws of the Purchaser;
(b) violate or, alone or with the passage of time, result in
the material breach or termination of, or otherwise give any contracting party
the right to terminate, or declare a default under, the terms of any agreement
or other document or undertaking, oral or written to which the Purchaser is a
party or by which it or any of its properties or assets may be bound (except for
such violations, conflicts, breaches or defaults as to which required waivers or
consents by other parties have been, or will, prior to Closing, be, obtained);
(c) result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the Purchaser or
pursuant to the terms of any such agreement or, instrument;
(d) violate any judgment, order, injunction, decree or award
against, or binding upon the Purchaser or upon its properties or assets; or
(e) violate any law or regulation of any jurisdiction relating
to the Purchaser or any of its securities, assets or properties.
3.5 Untrue or Omitted Facts. No representation, warranty or statement
by the Purchaser in this Agreement contains any untrue statement of a material
fact, or omits or will omit to state a fact necessary in order to make such
representations, warranties or statements not materially misleading.
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3.6 Tax Free Reorganization. Notwithstanding anything to the contrary
contained herein, the Purchaser makes no representations or warranties to the
Company or the Stockholder concerning whether this transaction will qualify as a
tax free reorganization under the Code.
ARTICLE IV
Additional Agreements
4.1 Consulting Agreement. At the Closing, the Stockholder and the
Purchaser shall each have executed a Consulting Agreement substantially in the
form attached hereto as Exhibit 4.1.
4.2 Warrant. At the Closing, the Purchaser shall have executed a
warrant for the purchase of common stock of the Purchaser in the name of van
Beek substantially in the form attached hereto as Exhibit 4.2.
ARTICLE V
Closing
5.1 Conditions to Closing. The delivery of the items to be delivered by
the Company and the Stockholder as provided in Section 5.3 hereof shall
constitute the conditions precedent to the obligation of the Purchaser to
complete the acquisition of the Company Common Stock contemplated by this
Agreement (the "Closing"), and the delivery of the items to be delivered by the
Purchaser as provided in Section 5.4 hereof shall constitute the conditions
precedent to the obligation of the Company and the Stockholder to Close. The
date on which the Closing shall be deemed to have occurred is referred to in
this Agreement as the "Closing Date."
5.2 Location, Time and Date. The location and time for the delivery of
the items to be delivered by the parties pursuant to this Article V shall be at
such place and time as is agreed to by the parties hereto, but in no event shall
the Closing occur later than September 30, 1999.
5.3 Items to be Delivered by the Company and the Stockholder. At the
Closing, the Company and the Stockholder will deliver or cause to be delivered
to the Purchaser:
(a) An acknowledgement by a notary or other individual
satisfactory to the Purchaser, or some form of documentation satisfactory to the
Purchaser that the Company has transferred the Company Common Stock then
representing one hundred percent (100%) of the outstanding shares of Company
Common Stock to the Purchaser; and
(b) A certificate signed by the Company, Omniflora, van Beek
and the Stockholder representing that: (i) all representations and warranties of
the Company, Omniflora, van Beek and the Stockholder contained in this Agreement
and in any written statement, Exhibit, certificate or schedule delivered
pursuant hereto or in connection with the transactions contemplated hereby shall
be true and correct in all material respects as at the Closing Date, as if made
at the Closing and as of the Closing Date; and (ii) the Company, Omniflora, van
Beek and the Stockholder shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to be
performed or complied with by each of them prior to or at the Closing; and
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(c) Such other documents and certificates as are required to
be delivered by the Company and the Stockholder pursuant to the provisions of
this Agreement or as reasonably requested by the Purchaser.
5.4 Items to be Delivered by the Purchaser. At the Closing, the
Purchaser will deliver or cause to be delivered to Omniflora, van Beek and the
Stockholder:
(a) The certificate for the Acquisition Shares due Omniflora,
and confirmation of issuance of the certificate for Stockholder's Acquisition
Shares, subject to Purchaser's retention thereof under this Agreement;
(b) The Warrant required by Section 4.2; and
(c) Such other documents and certificates as are required to
be delivered by the Purchaser pursuant to the provisions of this Agreement or as
reasonably requested by the Stockholder.
ARTICLE VI
Survival of Representations; Indemnification
6.1 Survival. The parties hereto agree that their respective
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Closing for a period of four (4) years from the
Closing Date (the "Indemnification Period"). To the extent that an Indemnified
Party (as hereinafter defined) asserts in writing a claim for Damages (as
hereinafter defined) against an Indemnifying Party (as hereinafter defined)
prior to the expiration of the Indemnification Period, which claim reasonably
identifies the basis for the claims and the amounts of any reasonably
ascertainable damages, the Indemnification Period shall be extended for such
claim until such claim is resolved, subject to the limitations hereinafter
provided.
6.2 Indemnification by Omniflora and the Stockholder. Omniflora and the
Stockholder agree to save, defend and indemnify the Company and the Purchaser,
their officers, directors, employees and agents against and hold them harmless
from any and all liabilities, of every kind, nature and description, fixed or
contingent (including, without limitation, reasonable counsel fees and expenses
in connection with any action, claim or proceeding relating to such liabilities)
("Damages") arising from the breach of any of the representations, warranties,
covenants or agreements contained herein, or arising from or in connection with,
in any way, any Hazardous Materials set forth in Schedule 2.23, and the
representations, warranties, covenants or agreements of Omniflora or the
Stockholder contained in the documents executed by the Stockholder in connection
herewith, which arise during and the basis for which is made during the
Indemnification Period, including, without limitation, any tax liabilities to
the extent not so reflected or reserved against in the Financial Statements. The
Purchaser shall be entitled to set-off against the Earn Out and the Earn Out
Shares any indemnity claims which may arise under this Agreement; provided,
however, the Purchaser's right to indemnification shall in no way be limited to
the amount, if any, of such set-off. AS COLLATERAL TO SECURE THE PERFORMANCE OF
THESE OBLIGATIONS, STOCKHOLDER ALSO PLEDGES, GRANTS AND CONVEYS TO PURCHASER A
SECURITY INTEREST IN STOCKHOLDER'S (JOBO) 50,000 ACQUISITION SHARES, WHICH SHALL
BE PERFECTED BY PURCHASER'S RETAINING POSSESSION OF THE CERTIFICATE REPRESENTING
THE ACQUISITION SHARES, UNTIL THE EARLIER OCCURS OF: (i) THE MILESTONES
DESCRIBED ABOVE IN SECTION 1.5 ARE ACHIEVED; OR (ii) ONE HUNDRED EIGHTY(180)
DAYS ELAPSES FROM THE CLOSING DATE; AT WHICH TIME THE SECURITY INTEREST SHALL BE
DISCHARGED AND THE CERTIFICATE REPRESENTING THE ACQUISITION SHARES SHALL BE
DELIVERED TO
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STOCKHOLDER, IF PURCHASER HAS NOT PREVIOUSLY IDENTIFIED AND NOTIFIED STOCKHOLDER
OF ANY BREACH FOR WHICH PURCHASER WOULD BE ENTITLED TO INDEMNIFICATION.
6.3 Indemnification by the Purchaser. The Purchaser agrees to save,
defend and indemnify Omniflora, van Beek and the Stockholder against and hold
them harmless from any and all Damages arising from the breach of any of the
Purchaser's representations, warranties, covenants or agreements contained
herein or the documents executed by Purchaser in connection herewith, which
arise during the Indemnification Period.
6.4 Nature of Liability of Omniflora and the Stockholder. Each of the
indemnity obligations of Omniflora and the Stockholder contained in this
Agreement are joint and several.
6.5 Limitations of Liability.
6.5.1 Liability of the Stockholder. Upon a Final Determination
(as provided in Section 6.5.3) of the amount of any claim for Damages made
against the Stockholder by the Purchaser, the Purchaser shall be entitled to
recover the amount of such Damages as finally determined.
6.5.2 Liability of the Purchaser. Upon a Final Determination
(as provided in Section 6.5.3) of the amount of any claim for Damages made
against the Purchaser by the Stockholder, the Stockholder shall be entitled to
recover the amount of such Damages as finally determined.
6.5.3 Final Determination. For the purposes of this Section
6.5, a Final Determination shall exist when: (i) the parties agree upon the
amount; or (ii) a court of competent jurisdiction shall have made a Final
Determination with respect thereto and appeal therefrom shall not have been
taken within thirty (30) days from the date of such determination, or such
greater or lesser time as a court of competent jurisdiction shall require. The
asserting party will assign to the other party any claims against which the
asserting party has been indemnified and has been paid as provided herein, as to
which there may be claims against others, and the other party in all respects
shall be subrogated to the rights of the asserting party in connection
therewith.
6.6 Defense of Claims. Each party entitled to indemnification under
this Article VI (the "Indemnified Party") agrees to notify the party required to
provide indemnification (the "Indemnifying Party") with reasonable promptness of
any claim asserted against it in respect of which the Indemnifying Party may be
liable under this Agreement, which notification shall be accompanied by a
written statement setting forth the basis of such claim and the manner of
calculation thereof. The failure of the Indemnified Party to promptly give
notice shall not preclude such Indemnified Party from obtaining indemnification
under this Article VI, except to the extent, and only to the extent, that the
Indemnifying Party's failure actually prejudices the rights or increases the
liabilities and obligations of the Indemnifying Party. The Indemnifying Party
shall have the right, at its election, to defend or compromise any such claim at
their own expense with counsel of their choice; provided, however, that: (i)
such counsel shall have been approved by the Indemnified Party prior to
engagement, which approval shall not be unreasonably withheld or delayed; (ii)
the Indemnified Party may participate in such defense, if it so chooses with its
own counsel and at its own expense; and (iii) any such defense or compromise
shall be conducted in a manner which is reasonable and not contrary to the
Indemnified Party's interest. In the event the Indemnifying Party does not
undertake to defend or compromise, the Indemnifying Party shall promptly notify
the Indemnified Party of its intention not to undertake to defend or compromise
the claim.
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ARTICLE VII
Miscellaneous Provisions
7.1 Expenses. Except as otherwise expressly provided or set forth in,
or required by, this Agreement, the Purchaser, the Company, Omniflora, van Beek
and the Stockholder shall each bear their own expenses in connection herewith.
7.2 Modification, Termination or Waiver. This Agreement may be amended,
modified, or superseded, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, but only by a written instrument
executed by the party waiving compliance. The failure of any party at any time
or times to require performance of any provision hereof shall in no manner
affect the right of such party at a later time to enforce the same.
7.3 Publicity. The parties agree that no publicity, release or other
public announcement concerning the transactions contemplated by this Agreement
shall be issued by any party other than the Purchaser.
7.4 Notices. Any notice or other communication required or which may be
given hereunder shall be in writing and either be: (i) delivered personally;
(ii) mailed, certified or registered, postage prepaid; (iii) sent by overnight
courier delivery service, receipt acknowledged, fees prepaid; or (iv)
transmitted by facsimile transmission to a telephone number as to which one
party notifies the other. Notice shall be deemed given when so delivered
personally, or if mailed, five (5) days after the date of mailing, or if
deposited with a courier service, two (2) days after such deposit, addressed as
follows
If to the Purchaser, to: World Commerce Online, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxx
President
With a copy to: World Commerce Online, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
General Counsel
If to the Stockholder, to: Xxxx xxx Xxxx
Xxxxxxxxxx 0
0000 XX Xxxxxxx, Xxxxxxxxxxx
If to the Omniflora, to: Xxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxx, Xxxxx
If Notice is provided by facsimile it shall be deemed given upon confirmation of
transmission. The parties may change the persons and addresses to which the
notices or other communications are to be sent by giving written notice of any
such change in the manner provided herein for giving notice.
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7.5 Binding Effect and Assignment. This Agreement shall be binding upon
and inure to the benefit of the successors and assigns of the parties hereto;
provided, however, that no assignment of any rights or delegation of any
obligations provided for herein may be made by Omniflora, van Beek or the
Stockholder without the express written consent of the Purchaser.
7.6 Entire Agreement. This Agreement represents the entire
understanding and agreement between the parties with respect to the subject
matter hereof, and supersedes all of the negotiations, understandings and
representations (if any) made by and between such parties.
7.7 Exhibits. All exhibits or schedules annexed hereto (the "Exhibits")
are expressly made a part of this Agreement as fully as though completely set
forth herein, and all references to this Agreement herein or in any of such
Exhibits shall be deemed to refer to and include all such Exhibits.
7.8 Governing Law. This Agreement shall be construed and enforced in
accordance with the local laws of the State of Florida applicable to agreements
to be executed and performed wholly within said state without giving effect to
its conflicts of laws provisions. The parties further agree that in any dispute
between them relating to this Agreement, exclusive jurisdiction shall be in the
trial courts located within Orange County, Florida, any objections as to
jurisdiction or venue in such court being expressly waived.
7.9 Section Headings. The section headings contained in this Agreement
are inserted for convenience of reference only and shall not affect the meaning
or interpretation of this Agreement.
7.10 Severability. The invalidity or unenforceability of any term or
provision of this Agreement shall in no way impair or affect the balance
thereof, which shall remain in full force and effect.
7.11 Attorneys' Fees. In the event any litigation or controversy arises
out of or in connection with this Agreement between the parties hereto, the
prevailing party in such litigation or controversy shall be entitled to recover
from the other party or parties all reasonable attorneys' fees, expenses and
suit costs, including those associated with any appellate or post-judgment
collection proceeding.
7.12 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but which together shall constitute
one and the same instrument.
7.13 Recitals. The recitals set forth at the beginning of this
Agreement are true and correct and incorporated by reference into the body of
this Agreement.
7.14 Definition of Knowledge. Whenever a statement of any party to this
Agreement is qualified by that party's "knowledge", "knowledge" means the actual
knowledge of the person making such statement at the time or times that such
statement is made. If the statement is made by a corporation, the actual
knowledge of the corporation's officers and directors is imputed to the
corporation; otherwise, the actual knowledge of a person shall not be imputed to
any other person.
7.15 Benefits to Others. The representations, warranties and covenants
contained in this Agreement are for the sole benefit of the parties hereto and
their successors and permitted assigns, and they shall not confer and are not
intended to confer any rights on any other persons.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the date first above written.
"PURCHASER":
WORLD COMMERCE ONLINE, INC.
By: /s/ Xxxxxx Xxxx
--------------------------------
Xxxxxx Xxxx
President
"COMPANY":
FRESH PRODUCTS NETWORK B.V.
By: /s/ Xxxx xxx Xxxx
--------------------------------
Xxxx xxx Xxxx
President
"OMNIFLORA":
OMNIFLORA INTERNATIONAL LTD.
By: /s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
"STOCKHOLDER":
JOBO HOLDING B.V.
By: /s/ Xxxx xxx Xxxx
-------------------------------
Xxxx xxx Xxxx
/s/ Xxxx xxx Xxxx
-------------------------------
Xxxx xxx Xxxx
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LIST OF SCHEDULES
SCHEDULE DESCRIPTION
-------- -----------
Schedule 2.1 Articles and Bylaws
Schedule 2.6 Financial Statements
Schedule 2.12 Real Property
Schedule 2.14 Accounts and Notes Receivable
Schedule 2.15 Permits and Licenses
Schedule 2.16 Banking Arrangements
LIST OF EXHIBITS
EXHIBIT DESCRIPTION
------- -----------
Exhibit 4.1 Consulting Agreement
Exhibit 4.2 Warrant
19
SCHEDULE 2.1
ARTICLES AND BYLAWS
(SEE ATTACHED)
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SCHEDULE 2.6
FINANCIAL STATEMENTS
(SEE ATTACHED)
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SCHEDULE 2.12
REAL PROPERTY
(NONE)
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SCHEDULE 2.14
ACCOUNTS AND NOTES RECEIVABLE
(SEE FINANCIAL STATEMENTS - SCHEDULE 2.6)
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SCHEDULE 2.15
PERMITS AND LICENSES
(SEE ATTACHED)
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SCHEDULE 2.16
BANKING ARRANGEMENTS
BANKADRES F.P.N. BV:
RABOBANK
X.X. XXX 000
0000 XX XXXXXXXX
XXXX. NR. 00.00.00.000
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EXHIBIT 4.1
CONSULTING AGREEMENT
(SEE ATTACHED)
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EXHIBIT 4.2
WARRANT
(SEE ATTACHED)
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