Exhibit 2
July 2, 1996
SHARE PURCHASE AND TRANSFER AGREEMENT
REGARDING
SHARES IN A LIMITED PARTNERSHIP
Between 1. Heribert Keller
Schillerstrasse 10
40878 Ratingen
2. Manfred Otto Roth
Buschland 3
42285 Wuppertal
3. Keller Organisation Beteiligungsgesellschaft mbH
Wuppertal
4. Roth Organisation Beteiligungsgesellschaft mbH
Wuppertal
(hereinafter collectively referred to as "Sellers")
on one side
And 5. Hartmann & Cie. GmbH + Co. KG
(soon: BT Office Products Deutschland GmbH & Co.
KG)
Weserstrasse 4
60329 Frankfurt am Main
6. Classic Burobedarf Vertriebs GmbH
Weserstrasse 4
60329 Frankfurt am Main
(hereinafter collectively referred to as "Purchasers")
7. BT Office Products Europe C.V.
Hoogoorddreef 62
NL-1101 BE Amsterdam ZO
(hereinafter referred to as "Guarantor")
on the other side
Preamble
Mr. Keller and Keller Organisation Beteiligungsgesellschaft mbH
are the sole shareholders of Keller Organisation KG, Ratingen (HRA(F1) 534). Mr.
Roth and Roth Organisation Beteiligungsgesellschaft mbH are the sole
shareholders of Roth Organisation KG, Wuppertal (HRA 16489); the two companies
are hereinafter collectively referred to as "Holding Companies."
After the purchase of the respective 40% shares held by BUROPA
Holding GmbH & Co., Ratingen (hereinafter referred to as "BUROPA"), Keller
Organisation KG holds the entire share capital in Keller Buromatic GmbH,
Ratingen (HRB 326), and Roth Organisation KG holds the entire share capital in
Buroeinrichtungshaus Roth GmbH, Wuppertal (HRB 5590) as well as Burosysteme
Roth Essen Beteiligungs GmbH, Essen (HRB 9180) and, as a limited partner, the
entire capital of Burosysteme Roth Essen GmbH & Co., Essen (HRA 6185). These
four companies are hereinafter referred to as the "Operative Companies";
the Operative and the Holding Companies are referred to as the "Companies".
The Sellers wish to transfer their entire share capital in the
Holding Companies to the Purchasers, and the Purchasers wish to acquire the
entire share capital from the Sellers.
NOW THEREFORE, the parties agree as follows:
SECTION 1
OBJECT OF PURCHASE, TRANSFER
1. The Sellers are holders of the shares as follows:
(I) Shares held in Keller Organisation KG
- Mr. Keller holds a DM 80,000.00 (80%) share in
Keller Organisation KG as general partner, and
- Keller Organisation Beteiligungsgesellschaft mbH
holds a DM 20,000.00 (20%) share as limited
partner.
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(F1) Translator's note: HRA and HRB refer to the numbers in the
local Commercial Register.
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(II) Shares held in Roth Organisation KG
- Mr. Roth holds a DM 85,000.00 (85%) share in
Roth Organisation KG as general partner, and
- Roth Organisation Beteiligungsgesellschaft mbH
holds a DM 15,000.00 (15%) share as limited
partner
(hereinafter referred to as the "Shares").
2. The Sellers hereby sell and the Purchasers hereby buy the
Shares as follows:
(I) Mr. Keller sells his share in Keller Organisation KG
- Amounting to DM 79,000.00 (79%) to Hartmann &
Cie. GmbH + Co. KG, who at the same time becomes
a limited partner in the company,
- Amounting to DM 1,000.00 (1%) to Classic
Burobedarf Vertriebs GmbH, who at the same time
becomes a general partner in the company.
(II) Keller Organisation Beteiligungsgesellschaft mbH
sells its share in Keller Organisation KG to
- Hartmann & Cie. GmbH + Co. KG,
(III) Mr. Roth sells his share in Roth Organisation KG
- Amounting to DM 84,000.00 (84%) to Hartmann &
Cie. GmbH + Co. KG, who at the same time becomes
a limited partner in the company,
- Amounting to DM 1,000.00 (1%) to Classic
Burobedarf Vertriebs GmbH, who at the same time
becomes a general partner in the company,
(IV) Roth Organisation Beteiligungsgesellschaft mbH sells
its share in Roth Organisation KG to
- Hartmann & Cie. GmbH + Co. KG.
3. Subject to the conditions precedent that
(I) The merger of the companies is cleared by the Federal
Cartel Office, or the time limit determined in ss. 24a,
paragraph 4 of the Restraint of Competition Act expires;
and
(II) The legally valid signing of the application for the
registration of the new shareholders as singular
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successors of the Sellers in the respective
commercial registers,
the Sellers hereby transfer their shares to the Purchasers
by way of singular succession; the Purchasers accept this
transfer. The day on which the two conditions will be
fulfilled is hereinafter called "Closing Day."
4. After execution of the transfer the participation in
(I) Keller Organisation KG will be as follows:
- Classic Burobedarf Vertriebs GmbH will
participate as general partner holding a DM
1,000.00 (1%) share, and
- Hartmann & Cie. GmbH + Co. KG will participate
as limited partner holding a DM 99,000.00 (99%)
share.
(II) Roth Organisation KG will be as follows:
- Classic Burobedarf Vertriebs GmbH will
participate as general partner holding a DM
1,000.00 (1%) share, and
- Hartmann & Cie. GmbH + Co. KG will participate
as limited partner holding a DM 99,000.00 (99%)
share.
SECTION 2
PURCHASE PRICE
1. The purchase price for the shares amounts to DM 19,500,000.00 (Deutsche
Mark Nineteen Million Five Hundred Thousand), subject to adjustments
that may be necessary according to the following paragraphs.
2. The purchase price is due from the execution of the transfer
and must be paid as follows:
(I) (1) an amount of DM 3,000,000 to Mr. Keller to the
account No. _______ with Commerzbank Dusseldorf
(BLZ 300 400 00),
(2) an amount of DM 2,000,000 to Mr. Keller to the
account No. _______ with Stadtsparkasse
Dusseldorf (BLZ 300 50 110),
(3) an amount of DM 2,000,000 to Mr. Keller to the
account No. _______ with the Deutsche Bank
Ratingen (BLZ 300 700 10),
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(II) an amount of DM 20,000 to the Keller Organization
Beteiligungsgesellschaft mbH to the account No. 36 50
306 with Commerzbank Dusseldorf (BLZ 300 400 00),
(III) (1) an amount of DM 3,515,000 to Mr. Roth to the
account No. ______ with Credit und Volksbank
Wuppertal-Barmen (BLZ 330 600 98),
(2) an amount of DM 3,500,000 to Mr. Roth to the
account No. ______ with the Stadtsparkasse
Wuppertal-Barmen (BLZ 330 50 000),
(3) an amount of DM 3,500,000 to Mr. Roth to the
account No. ______ with the Deutsche Bank
Wuppertal-Barmen (BLZ 330 700 90),
(IV) an amount of DM 15,000 to the Roth Organization
Beteiligungsgesellschaft mbH to the account No. 111
039 with the Stadt Sparkasse Wuppertal-Barmen (BLZ
330 500 00).
The remaining amount of DM 1,950,000 (10%) serves as collateral for
possible claims of the purchaser from or arising from this agreement,
and will be retained for a period until April 30, 1998.
The purchase price, including possible adjustment amounts, as far as
they have not yet been paid by that date, bears interest of 2% above
the discount rate of the Deutsche Bundesbank from July 1, 1996.
3. The purchase price will be adjusted if
(I) The target amount (see paragraph 4) for the period of July
1, 1995 to June 30, 1996 is more than 5% less than the
amount of DM 2,500,000.00, by deducting eight times the
difference between the target amount and DM 2,500,000.00;
(II) The target amount (see paragraph 4) for the period of
July 1, 1996 to December 31, 1996 differs more than
5% from the amount of DM 1,500,000.00, by adding or
deducting six times the difference between the target
amount and DM 1,500,000.00. In case of an adjustment
of the purchase price according to this provision,
the immediate impact of essential changes of the
structure or the business policy of the Companies
effected by the Purchaser must be eliminated if they
have not been effected with prior written consent by
the Sellers.
4. The target amount referred to in paragraph 3 is to be
determined as follows:
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(I) The consolidated yearly profit of the Companies (Operative
Companies and Holding Companies) as per the respective
Effective Date before corporate and income tax and after
deduction of 15% trade income tax and all other taxes
shall serve as a basis;
(II) Then, the results of the business relationship with BUROPA
have to be eliminated, with the exception of (a) results
from sales and services in the ordinary course of business
comparable to third-party business and (b) accurals
resulting from said business relationships.
(III) Finally, the amounts thus calculated shall be amended
according to the agreement reached during the negotiations
between the parties.
5. In order to determine the respective target amounts for the respective
periods according to paragraph 3, the annual accounts of the Companies
(hereinafter collectively referred to as the "Statements") will be
audited by (i) Coopers & Lybrand in Dusseldorf within twelve (12) weeks
after June 30, 1996 and (ii) Ernst & Young in Frankfurt and Stuttgart
within twelve (12) weeks after December 31, 1996.
Coopers & Lybrand shall within one month check the Statements audited
by Ernst & Young and vice versa. If Ernst & Young does not agree with
all Statements audited by Coopers & Lybrand, it shall inform the latter
accordingly within this one month period and vice versa. Failure to
inform the other auditing firm shall make the Statements binding. The
parties or the auditing firms will negotiate any objections made by
either side.
6. The target amounts shall be jointly determined by the Sellers and the
Purchasers within thirty (30) days after an agreement about the
statements has been reached.
7. Messrs. Keller and Roth shall be entitled to contribute to the
establishment of the accounts to the same extent as all other Managing
Directors of the Companies.
SECTION 3
EFFECTIVE DATE
The sale and transfer of the shares shall have economic effect as
per July 1, 1996, 12:00 a.m. (the "Effective Date").
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SECTION 4
SHAREHOLDER'S LOAN, PROFITS
The Sellers hereby assign and transfer to the Purchasers all
balances on their shareholder's accounts with the Holding Companies (capital
account I, capital account II, loan account, reserves account) as per the
Effective Date as well as all loans made to the Companies. The Sellers hereby
represent that during the business year 1995/96 no profits have been distributed
or will be distributed until the Effective Date, with the exception of (i) the
distribution of profits of the Holding Companies during the business year 1995,
(ii) the tax payments made by Mr. Roth and charged to his loan account and (iii)
distribution to be repaid until the Effective Date. The Operative Companies have
not distributed any advance payments and will not do so. The loans supplied by
Mr. Roth's sons will be repaid before the Effective Date.
SECTION 5
OBLIGATIONS OF THE SELLERS
1. The Sellers hereby agree to
(I) Cause the Roth Gesellschaft bugerlichen Rechts to enter
into a lease agreement with Buroeinrichtungshaus Roth GmbH
according to Annex 1,
(II) Cause the Keller Grundstucksverwaltung GbR to enter into a
lease agreement with Keller Buromatic GmbH according to
Annex 2
immediately after the execution of this agreement.
2. Mr. Keller will upon request of the Purchasers
(I) Resign from his office as Managing Director of Keller
Buromatic GmbH and enter into a termination agreement
according to Annex 3, and
(II) Enter into a consultancy agreement with Hartmann &
Cie. GmbH + Co. according to Annex 4.
3. Mr. Roth will upon request of the Purchasers
(I) Resign from his offices as Managing Director of
Buroeinrichtungshaus Roth GmbH and Burosysteme Roth
Essen Beteiligungs GmbH
and enter into a termination agreement according to Annex 5
and
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(II) Enter into a consultancy agreement with Hartmann &
Cie. GmbH + Co. according to Annex 6.
SECTION 6
OBLIGATIONS OF THE PURCHASERS
The Purchasers agree to enter into or cause the conclusion of the
agreements mentioned under Section 5.
SECTION 7
WARRANTIES AND REPRESENTATIONS
With regard to each of the Companies, the Sellers represent and
warrant as per the Effective Date and Closing Day:
1. The Sellers are the owners of the shares and they have the unrestricted
capacity to dispose of them. No third parties have any rights in the
shares; the shares are fully paid in. Neither of the Companies has
participated in any other companies with the exception of the Operating
Companies and the Companies listed in Annex 7. The participations in
BOG Essen Buroorganisation GmbH, PRO Office Burodienstleistungen GmbH,
Roth Datensysteme GmbH, BUROPA and BUROPA Holding
Verwaltungsgesellschaft GmbH will be transferred to one of the Sellers
or a third party named by them before the Closing Day against
reimbursement of the book values.
2. The excerpts from the commercial register attached as Annexes 8a) to f)
as well as the articles of association attached as Annexes 9a to f) are
complete and correct.
3. As per the Effective Date, the Companies are the owners of all assets
listed in the balance sheets audited by Coopers & Lybrand as per June
30, 1996. The Companies are free and unrestricted to dispose of these
assets; with the exception of statutory liens and usual retention of
title for which liabilities are listed in the balance sheet
accordingly, third parties have no rights in these assets.
4. The inventories listed in the balance sheet as per June 30, 1996 are in
good order and not defective; with the exception of spare parts and
assembly groups, they can be sold until December 31, 1996 in the
ordinary course of business for their inventory prices plus 20% on
average. Insofar as the inventories, with the exception of spare parts
and assembly groups, have not been sold until said date, the damage
shall be 50% of the inventory price.
5. By entering into this agreement, the Sellers or the Companies will not
violate any obligations. There are no contracts or legal relatinships
that might be terminated due to the sale of the shares.
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In particular, the Companies have not applied for or obtained public
subsidies that might be revoked or denied if the Sellers are not
shareholders of the Companies any more.
The Purchasers acknowledge that under the distribution agreements
listed in Annex 9b) the other parties to these agreements have to be
notified of changes of shareholders and might have the right to
terminate these agreements.
6. The annual statements of the Operative Companies as per June 30, 1995
(as Annex 10 attached) and June 30, 1996, and of the Holding Companies
as per December 31, 1995 (as Annex 10 attached) have been or will be
established in conformity with the generally accepted accounting
principles. They give a true and accurate impression of the Companies'
assets, financial situation and earnings.
The assets, financial situation and earnings have not significantly
deteriorated since June 30, 1995.
7. As per June 30, 1995, the Companies had only liabilities and potential
losses as shown in their respective annual statements. Since June 30,
1995, all liabilities have arisen of transactions in the ordinary
course of business.
8. The Companies have filed all necessary tax returns and have paid all
taxes, social security contribution and public duties or charges. For
taxes, social security contributions and public duties and charges not
yet due, but payable before July 1, 1996, sufficient accruals will have
been set aside in the balance sheet as per June 30, 1996. Insofar as
further taxes have to be paid for the period before July 1, 1996, e.g.,
after an audit by the tax authorities, they have to be paid by the
Sellers. The Sellers shall be entitled to give their comments and
assistance to any tax authority audits relating to the period ending
December 31, 1996. In particular, they may raise formal objections
against any decision by the tax authorities.
9. All documents and books of the Companies are complete and in good
order.
10. Annex 11 contains in complete and accurate form
(I) A list of all employees of the Companies, indicating
whether a written agreement exists; namely,
- the date of entry into the company's services
- the employee's age
- the employee's position
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- the employee's claims for retirement, bonus or
similar payments
- last year's gross salary
(II) The standard employment contract currently used by
the respective Company,
(III) A list of all applicable collective bargaining agreements.
With the exception of the obligations mentioned in the list, there are
no further obligations of the Companies vis-a-vis their respective
employees.
The employees shown in Annex 12 by name, position and age are
considered to be very important for the Companies; they have not yet
terminated their employment agreements and there is no reason to
believe that they will do so due to the sale of the shares.
11. Annex 13 contains a list of all important contracts of the Companies;
namely,
(I) Lease agreements
(II) Sales and service agreements
(III) Distribution and agency agreements
(IV) Insurance policies with the exception of car
insurance
(V) Other important contracts.
As to lease agreements regarding copying machines, Annex 13 contains a
sample of the standard contract used by the Companies; it is hereby
warranted that all existing copies are made up in accordance with the
sample with only minor and economically insignificant exceptions.
For the purposes of (I), (III) and (IV), agreements are considered
important if they contain unusual clauses or have been entered into not
in the ordinary course of business or cannot be terminated without
compensation before June 30, 1997 or provide for payment obligations of
DM 100,000 or more. For the purposes of (II), agreements are considered
important if they provide for payment obligation of DM 100,000 or more.
For the purposes of (V), agreements are considered important if they
cannot be terminated without compensation before June 30, 1997, or
provide for payment obligations of DM 100,000 or more.
12. All obligations of the Companies and the respective other party that
are due have been fulfilled properly and all payments have been made.
All accounts receivable have full value and will be paid when due.
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13. The flat accrual for doubtful accounts in the balance sheet will be in
accordance with previous business years and sufficient to cover the
risk for 1996; as per December 31, 1996 all accounts receivable as per
June 30, 1996 will have been paid after deduction of all allowances.
14. Annex 14 contains a complete and correct list of all agreements between
the Companies and the Sellers, the Sellers' companies (including
companies of the Sellers' relatives) or companies which are either
jointly or singly owned by the Sellers or their companies.
The agency and service agreements with the Sellers or the Companies
controlled by the Sellers on the Effective Date listed in Annex 14
shall continue to be effective for a minimum period of three years with
basically the same remuneration as hitherto paid; however, the
Purchasers or the Companies shall be entitled to terminate the
agreements or parts of them at their discretion. If the Purchasers or
the Companies decide not to use the services any more, they will be
credited with the savings of the Operative Companies; as for the rest,
they will make payments as usual.
The Companies have not given any collaterals for the benefit of the
Sellers, the Sellers' shareholders (including their relatives) or other
companies which belong either to the Sellers or their shareholders.
15. With the exception of short-term overdrafts, the Companies have not
taken any loans in the previous business years, and it will not be
necessary to take any loans in the future, provided that the course of
business remains unchanged; the Companies' consolidated accounts
payable to banks will be in the normal range as per June 30, 1996 and
will not exceed DM 200,000 in addition to the purchasing prices for the
six company cars purchased during the current business year
(approximately DM 180,000).
16. Annex 15 contains the General Terms and Conditions currently used by
the Companies.
17. With the exception of the proceedings mentioned in Annex 16, the
Companies are not involved in any litigation or administrative
proceedings and they have not been threatened with such proceedings and
have no intention to start them.
18. The Companies' businesses are run in accordance with all statutory
regulations, including, but not limited to environmental and safety
rules. The Companies have all permits and authorizations necessary to
conduct their respective businesses. The Companies have not polluted
the real property their businesses are built on.
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19. The Sellers have neither intently nor grossly negligent held back any
substantial information relating to the Companies that might reasonably
affect the Purchaser's decision to acquire the shares or to pay the
purchase price set forth under Section 2 of this agreement.
20. Since June 30, 1995:
- The Companies have continued to run their respective
businesses in accordance with their previous practice; in
particular, they have entered into leasing agreements only
under terms as used customarily;
- There has been no materially adverse changes in the
Companies' businesses, their assets and their business
perspectives;
- There have been no materially adverse changes with respect
to the Companies' own capital, balance sheet ratios or
periods in which accounts are to be received or to be paid
other than the one incurred during the ordinary course of
business.
The Companies will run their respective businesses in the ordinary and
customary course of business, they will inform the Purchasers regularly
about the development of the respective businesses and they will
coordinate with the Purchasers any business activities out the scope of
the ordinary course of business.
SECTION 8
VIOLATION OF WARRANTIES AND MISREPRESENTATION
1. If the representations and warranties set forth under Section 7 of this
agreement are incorrect or incomplete, the Purchaser will inform the
Seller accordingly. The Seller shall be entitled to try to remedy the
violation of the warranty or misrepresentation within due course. In
case that is not possible to do this on time, the Sellers will have to
pay damages.
2. ss.ss. 460 and 464 of the Civil Code shall not apply, as far as the
representations in Sections 7 and 8 are concerned. As for the rest,
they are applicable only with regard to information given by the
Sellers to Ernst & Young.
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SECTION 9
STATUTE OF LIMITATION
All claims for breach of representation and warranties shall
lapse on April 30, 1998; as for claims relating to tax payment obligations, they
shall lapse six months after the legally binding assessment of the respective
obligation. Claims for deficiency in title shall lapse according to the
statutory provisions.
SECTION 10
NON-COMPETITION UNDERTAKING
For a period of 5 years after execution of this agreement,
the Sellers undertake not to engage in any competitive activities, either
directly or indirectly, in the fields and areas in which the Companies are
currently active. Financial participations in companies listed at a stock
exchange of 5% or less shall not be deemed competitive. This non-competition
clause shall not apply to the consultancy activities of Mr. Keller regarding:
- buroplan vanderhey GmbH & Co. KG, Dusseldorf
- Schroter Burozentrum, Tonisvorst
- Buro Bogers GmbH, Goch,
Buro Valk Gmbh + Co., Bocholt
Further, the non-competition clause shall not apply to the
services rendered by Mr. Roth as Managing Director of Roth Datensysteme GmbH and
of the shop of Buro Roth GmbH + Co. KG as provided for in his employment
agreements, as well as the position as shareholder and Managing Director of Pro
Office Burodienstleistungs GmbH.
Each infringement of this non-competition clause shall result
in a penalty of DM 75,000, notwithstanding the possibility to claim further
damages.
SECTION 11
RIGHT OF RESCISSION
1. Both the Purchasers and the Sellers may rescind this
agreement if the target amount as set forth in Section
2.3(I) is less than DM 2,100,000.
2. The Purchasers may rescind this agreement:
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(I) If their damage claims amount to more than 25% of the
purchase price; or
(II) If the Companies have taken any actions outside the
ordinary course of business within the period between the
execution and the closing of this agreement, resulting in
a significant deterioration of the financial, asset or
profit situation, without the necessary approval of the
Purchasers.
3. The party which wants to rescind the agreement has to exercise its
recission right within one month after receiving knowledge of the
right, but until April 30, 1998, at the latest.
SECTION 12
JOINT AND SEVERAL OBLIGATION, JOINT AND SEVERAL CREDITORS
1. The Sellers and the Purchasers are jointly and severally
liable for obligations under this agreement.
2. The Sellers and the Purchasers are joint and several
creditors for all claims under this agreement.
3. The Guarantor warrants the timely and complete fulfillment
of the Purchaser's obligations under this agreement.
SECTION 13
NOTIFICATION OF THE FEDERAL CARTEL OFFICE
1. Under ss. 24a of the Restraints of Competition Act, the Federal Cartel
Office has to be notified of the acquisition that is the object of this
agreement. The execution of this agreement is therefore subject to the
condition precedent that the Federal Cartel Office clears of the
acquisition or lets the deadline for an objection expire without
interfering.
2. The Purchasers undertake to immediately notify the Federal Cartel
Office of the merger procedure in this agreement. The Purchasers shall
inform the Sellers about the notification and the ensuing procedure,
provided, however, that no business secrets of the Purchasers are
disclosed. The Sellers will provide the Purchasers with all information
necessary for the notification.
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SECTION 14
COSTS
1. The fees for the notary and the Federal Cartel Office shall
be born by the parties by half.
2. All other costs, including but not limited to, lawyers, tax
consultant and auditors shall be born by the party who
employed those advisors.
SECTION 15
INVALIDITY AND UNENFORCEABILITY
If a provision of this agreement should be or become invalid
or unenforceable, the validity of the other provisions of this agreement shall
not be affected thereby. The parties agree to substitute the invalid or
unenforceable provision with another provision which corresponds as closely as
possible to the intention of the parties according to the aim and purpose of
this agreement. The same applies if the agreement is incomplete.
SECTION 16
GOVERNING LAW
This agreement shall be governed by German law.
SECTION 17
AMENDMENTS
1. There are no oral modifications of this agreement; any
existing oral modification shall be null and void upon the
signing of this agreement.
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2. Amendments to this agreement must be made in writing; provided,
however, that no notarial certification is necessary. An amendment of
this clause Section 17.2 also has to be in writing.
Frankfurt, July 2, 1996
- ---------------------------------- ------------------------------------
Heribert Keller Hartmann & Cie.
GmbH + Co. KG
- ---------------------------------- ------------------------------------
Manfred Otto Roth Classic Burobedarf
Vertriebsgesellschaft mbH
- ---------------------------------- ------------------------------------
Keller Organisation GmbH BT Office Products Europe
B.V.
- ----------------------------------
Roth Organisation GmbH
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Pursuant to Rule 306(a) of Regulation S-T, BT Office Products
International, Inc. hereby represents that the foregoing English translation of
the Share Purchase and Transfer Agreement is a fair and accurate translation of
the original German language document.
BT OFFICE PRODUCTS INTERNATIONAL, INC.
By:/s/John J. McKiernan
------------------------------------
John J. McKiernan
Vice President-Finance and
Administration, Chief Financial
Officer and Secretary
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