EXHIBIT 10.2
EXECUTION COPY
AUXCIS NV
as Pledgor,
and
ABN AMRO CAPITAL (BELGIUM) NV
BODIN SAPHIR PENSION SCHEME
MAGNUM TECHNOLOGY LTD.
J.J. MENNILLO
as Pledgees
- --------------------------------------------------------------------------------
PLEDGE AGREEMENT
relating to shares in
AUCXIS TRADING SOLUTIONS NV
Dated 2 April 2002
- --------------------------------------------------------------------------------
EXECUTION COPY
SHARE PLEDGE AGREEMENT
----------------------
"THIS AGREEMENT"
BETWEEN
1. AUCXIS NV, a limited liability company ("naamloze vennootschap") existing
under the laws of Belgium, with its registered offices at 9190 Stekene,
Zavelstraat 7, registered with the Commercial Registry of Dendermonde,
section Sint-Niklaas as number 61.208, represented for the purpose of this
Agreement by AUCXIS CORP., a company incorporated under the laws of the
State of Nevada, United States of America, with its registered offices at
Toronto Ontario M5H 1K4, 220, King Street West , represented for the
purpose of this Agreement by Mr Dennis Petke, its Chief Financial Officer
hereinafter referred to as the "Pledgor"
and
2. ABN AMRO CAPITAL (Belgium), a limited liability company ("naamloze
vennootschap") existing under the laws of Belgium, with its registered
offices at 1000 Brussels, Regentlaan 53, Belgium, registered with the
Commercial Registry of Brussels as number 622.783, represented for the
purpose of this Agreement by either of Mr Koen Verbruggen, Mrs Anne Degeest
or Mr Florent Schmidt, acting on the basis of a power of attorney,
hereinafter referred to as the "First Pledgee",
3. BODIN SAPHIR PENSION SCHEME a small self administered pension scheme under
the Laws of England, Heronden, Chart Hill, Chart Sutton, Kent ME 17 3EZ,
England, represented for the purpose of this Agreement by Mr. Nicholas
Saphir, as its trustee,
hereinafter referred to as the "Second Pledgee",
4. MAGNUM TECHNOLOGY LTD., a limited liability company existing under the laws
of Guernsey, with its administrative offices at St. Peter's House, St.
Peter Port, GY1 6AX, Guernsey, The Channel Islands, represented for the
purpose of this Agreement by First Board Limited, director, represented by
Mr Nicholas Moss,
hereinafter referred to as the "Third Pledgee",
5. Mr Jean Jacques MENNILLO, residing at 13190 Allauch, 270 Chemin de Carambot
de la Ribassiere, France,
hereinafter referred to as the "Fourth Pledgee",
Parties sub 2 to 5 (included) are hereinafter collectively referred to as the
"Pledgees".
Parties sub 1 to 5 (included) are hereinafter individually referred to as a
"Party" and collectively referred to as the "Parties".
- --------------------------------------------------------------------------------
2 EXECUTION COPY
WHEREAS :
1. Pursuant to a loan agreement dated 2 April 2002 (hereinafter referred to
as the "Loan Agreement"), the Pledgees have agreed to make available to
Aucxis Corp., a company incorporated under the laws of the State of
Nevada, United States of America, with its registered offices at Toronto
Ontario M5H 1K4, 220, King Street West, Canada (the "Borrower"), a
convertible bridge loan for an aggregate principle amount of US $
500.000,00 (five hundred thousand United States Dollars), of which the
proceeds shall be applied by the Borrower in and towards funding its
operational expenses and those of its European subsidiaries, more in
particular (but not limited to) the Pledgor and Aucxis Trading
Solutions, a limited liability company ("naamloze vennootschap")
existing under the laws of Belgium, with its registered offices at 9190
Stekene, Zavelstraat 7, Belgium, registered with the Commercial Registry
of Dendermonde, section Sint-Niklaas, as number 43.775 ("the Company"),
such costs including (but not being limited to) transaction and bridging
costs arising out of or in relation with the prospective merger with
AMI, with respect to which the Borrower undertakes in good faith to take
all reasonable steps to complete, it being understood that nothing
herein shall obligate the Borrower to complete the prospective merger
with AMI if its board, acting in good faith, shall determine not so to
complete.
2. The Pledgor owns 592 of the 640 shares in the share capital of the
Company.
3. Of the above 592 shares, 256 (i.e. N(degree)s 385 to 640 (included)) are
owned free and clear of any pledges, liens, charges or other
encumbrances, and a further 336 (i.e. N(degree)s 49 to 384 (included))
have been pledged to Mr Luc Schelfhout ("Schelfhout") and Mrs Hilde De
Laet ("De Laet"), both residing at 9190 Stekene, Bormte 204 A, Belgium,
subject to a pledge agreement dated 10 January 2000 (the "Schelfhout
Pledge").
4. Solely as security for the due performance of the Secured Liabilities
(as defined below), the Pledgor has agreed to grant a Pledge (as defined
below) over the Pledged Assets (as defined below) under the terms and
conditions set out in this Agreement.
IT HAS BEEN AGREED AS FOLLOWS :
ARTICLE 1 : INTERPRETATION
1.1 Terms defined in the Loan Agreement shall have the same meaning in this
Agreement, unless otherwise defined herein or the context otherwise
requires.
1.2 In addition, the following terms shall have the following meaning for the
purposes of this Agreement, unless the context otherwise requires :
"Pledge" means the pledge over the Pledged Assets created further to
Article 2.
"Pledged Assets" has the meaning ascribed thereto in Articles 3 and 6.
"Secured Liabilities" means all present and future obligations and
liabilities whether actual or contingent, of the Borrower to the Pledgees
(or any of them) only pursuant to or in connection with the Loan
Agreement, as amended, restated, varied, supplemented or novated from
time to time, in each case together with all interest, costs, charges and
expenses reasonably incurred by the Pledgees (or any of them) in
connection with the protection, preservation, or enforcement of their
respective rights hereunder.
"Shares" has the meaning ascribed thereto in Article 3.
3 EXECUTION COPY
1.3 In this Agreement any reference to an agreement (howsoever named) is to
such agreement as it may be amended, restated, varied, supplemented or
novated from time to time, whether before or after the date thereof.
ARTICLE 2 : PLEDGE
2.1 The Pledgor hereby pledges the Pledged Assets to the Pledgees, solely as
security for the due performance of the Secured Liabilities under the
Commercial Pledge Act of 5 May 1872.
2.2 The Parties agree that in the event of an assignment, transfer or
novation by (one or several of) the Pledgees of all or any part of its
(their) rights and obligations under the Loan Agreement, the other
Pledgees shall preserve all of its (their) rights with respect to the
Pledge as expressly permitted where relevant under article 1692 and/or
1278 (as the case may be) of the Belgian Civil Code, so that the security
created by the Pledge shall be automatically transferred to the assignee,
transferee or new creditor after novation.
2.3 The rights of the Pledgees under this Agreement are several and divided.
A Pledgee may separately enforce such rights. If any Pledgee commences
legal proceedings against the Pledgor, it shall forthwith upon the
initiation thereof inform the other Pledgees. Upon any enforcement of
this Agreement, any Pledgee shall be entitled to the proceeds of its
proportionate share of the Pledged Assets (as set forth on Article 3.1.
hereof) up to such amount of the Secured Liabilities which is owed to
such Pledgee in satisfaction of such amounts.
ARTICLE 3 : THE PLEDGED ASSETS
3.1 The assets pledged hereunder (the "Pledged Assets") are the 592 shares
which the Pledgor currently holds in the Company (the "Present Shares")
and any other shares in the Company which the Pledgor may subscribe to or
acquire in the future (the "Future Shares") (the Present Shares and the
Future Shares collectively being referred to as the "Shares").
148 (one hundred and fourty eight) of the Present Shares are pledged to
each of the Pledgees in the following manner :
(a) N(degree)s 49 to 132 (included) and N(degree)s 385 to 448
(included) are pledged to the First Pledgee ;
(b) N(degree)s 133 to 216 (included) and N(degree)s 449 to 512
(included) are pledged to the Second Pledgee ;
(c) N(degree)s 217 to 300 (included) and N(degree)s 513 to 576
(included) are pledged to the Third Pledgee and ;
(d) N(degree)s 301 to 384 (included) and N(degree)s 577 to 640
(included) are pledged to the Fourth Pledgee.
With respect to 256 of the Present Shares, i.e. N(degree)s 385 to 640
(included), the Pledge shall take effect immediately on the execution
hereof.
With respect to the further 336 of the Present Shares (i.e. N(degree)s 49
to 384(included)), the Pledge shall take effect immediately on the
execution hereof and, for as long as the Schelfhout Pledge is in place,
rank immediately after and subject to the Schelfhout Pledge, without
prejudice to any rights which might be derived from the restraint orders
granted to Schelfhout and De Laet by the Judge for Restraint Orders with
the Civil Court of Dendermonde on 17 July 2001 and on 29 March 2002 (the
"Restraint Orders").
4 EXECUTION COPY
The Future Shares are pledged to each of the Pledgees in an equal
proportion, as a consequence of which each of the Pledgees shall
automatically and by force of law have the benefit of the Pledge over
1/4th (one fourth) of such Future Shares.
3.2 The Shares are in registered form. The Pledgor shall not, without the
relevant Pledgee's prior written consent, request or permit the
conversion of the Shares into bearer shares.
3.3 The Pledgor shall arrange for the Pledge to be recorded and dated in the
Company's share register and be signed therein on behalf of the Pledgor
and the Pledgees :
(a) for the Present Shares, simultaneously with or as soon as
reasonably possible after the execution hereof or the lifting of
the Schelfhout Pledge (as the case may be), or;
(b) for the Future Shares, simultaneously with or as soon as
reasonably possible after its subscription thereto or the
acquisition thereof.
3.4 For the purpose of recording the Pledge, the Pledgor shall excute a power
of attorney in the form of Schedule 1 hereto.
ARTICLE 4 : REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS.
4.1 The Pledgor represents, warrants and undertakes to the Pledgees that :
(a) it is a "naamloze vennootschap" duly established under the laws of
Belgium, validly existing and not in liquidation, with power to
enter into this Agreement and to exercise its rights and perform
its obligations hereunder and all corporate and other action
required to authorise execution and performance of this Agreement
has been duly taken;
(b) the Company is a "naamloze vennootschap" duly established under
the laws of Belgium, validly existing and not in liquidation;
(c) the Company's share capital is represented by 640 registered
shares. There are no beneficial shares or other shares which
represent the Company's share capital, nor are there any warrants,
convertible bonds or other rights whatsoever to acquire shares in
the Company currently outstanding;
(d) it owns 256 (i.e. N(degree)s 385 to 640 (included)) of the Present
Shares free and clear of any encumbrances other than the Restraint
Orders ;
(e) it owns 336 (i.e. N(degree)s 49 to 384 (included)) of the Present
Shares subject to the Schelfhout Pledge; such Present Shares are
however not subject to any other pledges or other encumbrances
other than the Restraint Orders;
(f) there are no limitations, whether pursuant to the Company's
articles of association or to any agreement, to the
transferability of the Shares or to the exercise of the voting
rights attached thereto other than pursuant to the Schelfhout
Pledge with respect to 336 (i.e. N(degree)s 49 to 384 (included))
of the Present Shares and other than the Restraint Orders ;
(g) the Present Shares are fully paid-up ; the Company has not
declared any dividends in respect of the Present Shares which are
still unpaid on the date hereof;
5 EXECUTION COPY
(h) it will not proceed to any disposal of its assets, undertakings or
business activities in such a manner as might have a material
adverse effect on the value of the Shares, without obtaining the
Pledgees' prior consent (which is not to be unreasonably withheld
or delayed), and;
(i) this Agreement does not violate any contractual or other
obligation binding upon it.
4.2 the Pledgor undertakes as follows :
(a) except as may be permitted under the Loan Agreement or the
Schelfhout Pledge, it shall not dispose of the Pledged Assets, it
shall not create any other pledge, charge or encumbrance in
respect of the Pledged Assets (irrespective of whether ranking
behind the Pledge), and shall not permit the existence of any such
pledge, charge or encumbrance, and;
(b) it shall co-operate with the Pledgees and sign or cause to be
signed all such further documents and take all such further action
as the Pledgees may from to time reasonably request to perfect and
protect the Pledge and to carry out the provisions and purposes of
this Agreement.
ARTICLE 5 : SCOPE OF THE PLEDGE
5.1 The Pledge shall be a continuing security, shall remain in force until
released in accordance with Article 7, and shall in particular not be
discharged by reason of the circumstance that there is at any time no
obligation currently owing from the Pledgor to the Pledgees. For the
avoidance of doubt it is however expressly understood that the Pledge may
not be enforced at any time when there is no obligation currently owing
from the Pledgor to the Pledgees.
5.2. The Pledge shall not be discharged by the entry of any Secured
Liabilities into any current account, in which case the Pledge shall
secure any provisional or final balance of such current account up to the
amount in which such Secured Liabilities were entered therein.
5.3 Each of the Pledgees may at any time without discharging or in any way
affecting the Pledge (a) grant the Pledgor any time or indulgence, (b)
concur in any moratorium of the Secured Liabilities, (c) abstain from
taking or perfecting any other security and discharge any other security,
or (d) abstain from exercising any right or recourse or from proving or
claiming any debt and waive any right of recourse.
ARTICLE 6 : RIGHTS ATTACHING TO THE SHARES
6.1 Voting rights
Unless an Event of Default (as defined in the Loan Agreement) has
occurred, the Pledgor shall exercise its voting rights in respect of the
Shares in a manner consistent with the interests of the Pledgees.
Upon an Event of Default which results in the Pledgees (or any of them)
serving a Notice of Default to the Borrower under the Loan Agreement
(hereinafter referred to as a "Declared Default") and as long as such
Declared Default shall be continuing, the Pledgor shall cast the votes
attaching to the Shares in accordance with the Pledgees' instructions,
which instructions the Pledgor shall timeously seek.
6 EXECUTION COPY
6.2 Dividend rights and other returns
In the absence of any Declared Default, any dividends on the Shares shall
be payable to the Pledgor.
Following the occurrence of a Declared Default and as long as such
Declared Default shall be continuing, any dividends shall be paid
exclusively to the Pledgees which shall apply the same towards and to
reduce down the Secured Liabilities.
Any return on the Shares other than a dividend, irrespective of whether
in the form or repayment of capital, scrips, dividend shares, bonus
shares or otherwise, shall exclusively be paid or delivered to the
Pledgees which shall apply the same towards and to reduce down the
Secured Liabilities.
In the event that any return on the Shares which, pursuant to the above
paragraphs, is to be paid or delivered to the Pledgees, shall entitle the
Pledgor to a tax credit on account of withholding taxes, the Pledgor
shall, forthwith upon the declaration of such return, pay to the Pledgees
an amount equivalent to such tax credit and such amount shall be deemed a
return on the Shares for the purposes of this Article 6.2, which is to be
applied towards and to reduce down the Secured Liabilities.
The Pledge shall not in any way be affected by any stamping, regrouping,
splitting or renewal of the Shares, or by any similar operation, and the
securities resulting from any such operation shall be part of the Shares
and the Pledged Assets.
ARTICLE 7 : DISCHARGE OF THE PLEDGE
7.1 The Pledge shall be discharged by, and only by, the express release
thereof granted by the Pledgees. The Pledgees shall grant such express
discharge as soon as practical after all the Secured Liabilities pursuant
to the Loan Agreement have irrevocably been fulfilled in accordance with
its terms and conditions.
7.2 The Pledgees shall inform the Company of such release, and shall provide
the Pledgor with a power of attorney in favour of the agent designated by
the Pledgor for the purpose of recording the release of the Pledge in the
Company's share register. Forthwith upon such release being granted, the
Pledgees shall return to the Pledgor any other Pledged Assets and the
Pledgor shall take delivery thereof.
7.3 Any release of the Pledge shall be null and void and without effect if
any payment received by the Pledgees (or any of them) and applied towards
satisfaction of all or part of the Secured Liabilities (a) is avoided or
declared invalid as against the creditors of the maker of such payment,
or (b) becomes repayable by the Pledgees (or any of them) to a third
party, or (c) proves not to have been effectively received by the
Pledgees (or any of them).
ARTICLE 8 : DUTIES OF THE PLEDGEES
8.1 The Pledgees shall not be liable for any acts or omissions including,
without limitation, acts or omissions with respect to the Pledged Assets,
except in case of their gross negligence or wilful misconduct.
8.2 None of the Pledgees shall be under any obligation to take any steps
necessary to preserve any rights in the Pledged Assets against any other
third parties but may do so at its option, and all expenses reasonably
incurred in connection
7 EXECUTION COPY
therewith shall be for the account of the Pledgor and shall be part of
Secured Liabilities.
ARTICLE 9 : EXPENSES
All reasonable expenses and duties in connection with this Agreement, in
particular with regard to the establishment and perfection of the Pledge and the
granting of any release thereof, shall be borne by the First Pledgee.
ARTICLE 10 : EVIDENCE OF SECURED LIABILITIES
A bona fide certificate by the Pledgees as to the amount and the terms and
conditions of the Secured Liabilities, properly prepared and delivered, shall be
conclusive evidence as against the Pledgor, save to the extent of contrary
evidence (if any).
ARTICLE 11 : NOTICES
Article 19 (Notices) of the Loan Agreement shall apply to any notice given
pursuant to or in connection with this Agreement.
ARTICLE 12 : SEVERABILITY
The invalidity or unenforceability of any provision hereof shall not affect the
validity or enforceability of this Agreement or any other provision hereof.
ARTICLE 13 : WAIVER
No failure on the part of the Pledgees (or any of them) or of the Pledgor to
exercise, or delay on its part in exercising, any right under this Agreement
shall operate as a waiver thereof, nor shall any single exercise by the Pledgees
(or any of them) or by the Pledgor of any right preclude any further or other
exercise of such right or the exercise of any other right by the Pledgees or by
the Pledgor.
ARTICLE 14 : APPLICABLE LAW AND JURISDICTION
14.1 This Agreement shall be governed by and construed in accordance with
Belgian law.
14.2 The Pledgor agrees for the benefit of the Pledgees that any dispute
arising out of or in connection with this Agreement shall be subject to
the exclusive jurisdiction of the Courts of Brussels, Belgium, without
prejudice to the rights of the Pledgees to take legal action before any
other court of competent jurisdiction.
ARTICLE 15 : FACSIMILE SIGNATURES
The Parties agree that this Agreement and all exhibits or documents in
connection therewith, may be validly executed by facsimile signatures.
(signatory page follows)
8 EXECUTION COPY
Agreed on 2 April 2002 and executed in five (5) originals on the dates indicated
hereinafter, each of the parties acknowledging having received one original.
The Pledgor :
Date :...........................................
Signature :...........................................
Name : Dennis Petke for Aucxis Corp.
Capacity : Managing Director
The First Pledgee :
Date :...........................................
Signature :...........................................
Name :...........................................
Capacity : Special Attorney
The Second Pledgee :
Date :...........................................
Signature :...........................................
Name : Nicholas Saphir
Capacity : Trustee
The Third Pledgee :
Date :...........................................
Signature :...........................................
Name : Nicholas Moss for First Board Limited
Capacity : Director
The Fourth Pledgee :
Date :...........................................
Signature :...........................................
Name : Jean-Jacques Mennillo
SCHEDULE 1 : POWER OF ATTORNEY AS REFERRED TO IN ARTICLE 3.4
- --------------------------------------------------------------------------------
The undersigned :
AUCXIS, a limited liability company ("naamloze vennootschap") existing under the
laws of Belgium, with its registered offices at 9190 Stekene, Zavelstraat 7,
registered with the Commercial Registry of Sint-Niklaas as number 61.208 (the
"Pledgor"), represented for the purpose of this Agreement by AUCXIS CORP., a
company incorporated under the laws of the State of Nevada, United States of
America, with its registered offices at Toronto Ontario M5H 1K4, 220, King
Street West , represented for the purpose of this Agreement by Mr Dennis Petke,
its Chief Financial Officer,
declares :
1. that it has, pursuant to a Pledge Agreement dated 2 April 2002, pledged
to:
(a) ABN AMRO CAPITAL (Belgium), a limited liability company ("naamloze
vennootschap") existing under the laws of Belgium, with its
registered offices at 1000 Brussels, Regentlaan 53, Belgium,
registered with the Commercial Registry of Brussels as number
622.783, 148 registered shares N(degree)s 49 to 132 (included) and
N(degree)s 385 to 448 (included) ;
(b) BODIN SAPHIR PENSION SCHEME a small self administered pension
scheme under the Laws of England, Heronden, Chart Hill, Chart
Sutton, Kent ME 17 3EZ, England, 148 registered shares N(degree)s
133 to 216 (included) and N(degree)s 449 to 512 (included) ;
(c) MAGNUM TECHNOLOGY LTD., a limited liability company existing under
the laws of Guernsey, with its administrative offices at St.
Peter's House, St. Peter Port, GY1 6AX, Guernsey, The Channel
Islands, 148 registered shares N(degree)s 217 to 300 (included)
and N(degree)s 513 to 576 (included), and ;
(d) Mr Jean Jacques MENNILLO, residing at 13190 Allauch, 270 Chemin de
Carambot de la Ribassiere, France, 148 registered shares
N(degree)s 301 to 384 (included) and N(degree)s 577 to 640
(included);
in Aucxis Trading Solutions, a limited liability company ("naamloze
vennootschap") existing under the laws of Belgium, with its registered
offices at 9190 Stekene, Zavelstraat 7, registered with the Commercial
Registry of Sint-Niklaas as number 43.775 (the "Company").
2. that it hereby appoints Bodin & Nielsen Ltd., a limited liability company
under the laws of England, with its registered offices at Heronden, Chart
Hill, Chart Sutton, Kent ME 17 3EZ, England, represented for the purpose
of this agreement by Mr Nicholas Saphir (the "Attorney"), which accepts,
or any third party further to be appointed by the Attorney, as its
special attorney, with power to act alone or to substitute, for the
purpose of recording the above pledge in the Company's share register.
Executed on 2 April 2002.
The Pledgor *: The Attorney
- --------------------------
* Signature to be preceded by the hand-written words "Goed voor volmacht".