Exhibit 10.18
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SHARE PURCHASE AGREEMENT
between
COMDISCO, INC.
and
PH HOLDING GMBH
Dated as of August 14, 2002
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ARTICLE I DEFINITIONS.............................................2
1.1 Definitions.................................................2
ARTICLE II SALE AND PURCHASE OF THE SHARE Quota....................4
2.1 Sale and Purchase...........................................4
2.2 Excluded Contracts..........................................4
2.3 Purchase Price..............................................5
2.4 Payment of Purchase Price...................................5
2.5 Holdback....................................................5
2.6 Inter-Company Accounts......................................7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER................7
3.1 Due Incorporation and Ownership.............................8
3.2 Authority; Consents and Approvals...........................8
3.3 No Other Representations and Warranties.....................8
3.4 Seller's Limitation on Liability............................8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER.............9
4.1 Power, Authority and Consents...............................9
4.2 Familiarity with the Company's Business.....................9
4.3 Financial Capacity of Purchaser.............................9
ARTICLE V COVENANTS AND FURTHER OBLIGATIONS.......................9
5.1 Funds for Liquidation of Czech Subsidiary...................9
5.2 Cooperation after Closing..................................10
5.3 Comdisco Trademark ........................................11
5.4 Confidentiality ...........................................11
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.......11
ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER..........11
7.1 Warranties True as of Closing Date.........................12
7.2 Compliance with Agreements and Covenants...................12
7.3 No Injunctions or Restraints...............................12
7.4 Board Approval.............................................12
7.5 Payment of the Purchase Price..............................12
ARTICLE VIII REMEDIES, INDEMNIFICATION..............................12
8.1 Indemnification by Purchaser...............................13
ARTICLE IX MISCELLANEOUS..........................................13
9.1 Expenses...................................................13
9.2 Amendment..................................................13
9.3 Notices....................................................13
9.4 Waivers....................................................14
9.5 Counterparts...............................................14
9.6 Interpretation.............................................14
9.7 Governing Law..............................................15
9.8 Assignment.................................................15
9.9 No Third Party Beneficiaries...............................15
9.10 Calculation of Time Periods................................15
9.11 Further Assurances.........................................15
9.12 Severability...............................................15
9.13 Entire Understanding.......................................16
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT is made by and between COMDISCO, INC.,
a corporation duly established and validly existing under the laws of Delaware
with its corporate seat in Illinois, 60018 Rosemont, 6111 North River Road,
USA (the "Seller") and PH HOLDING GmbH, a limited liability company duly
established and validly existing under the laws of Austria with its corporate
seat in 1010 Vienna, Reischachstrasse 3/12A and registered with the commercial
register at the Commercial Court Vienna under FN 224852s (the "Purchaser").
Certain capitalized terms used herein are defined in Article I.
W I T N E S S E T H:
WHEREAS, the Seller and all of its group entities are engaged in the
business of leasing and providing remarketing services for distributed
computing systems (servers, workstations, personal computers, local area
networks and other high technology equipment), (the "Business");
WHEREAS, Computer Discount GmbH ( the "Company") is an Austrian
company with limited liability with its corporate seat in 1010 Vienna,
Mahlerstrasse 7/22 and registered with the commercial register at the
Commercial Court Vienna under FN 81059f. The stated share capital of the
Company amounts to ATS 40,550,000 (Austrian Schilling forty million five
hundred and fifty thousand);
WHEREAS, Seller is the legal and beneficial owner of a share quota
with a nominal value of ATS 40,550,000 (Austrian Schilling forty million five
hundred and fifty thousand) representing 100% of the stated share capital of
the Company (the "Share Quota"). The stated share capital of the Company has
been fully paid up in cash;
WHEREAS, Peter Huber, an Austrian citizen, born on the 8th (eighth)
day of April 1963 (one thousand nine hundred and sixty three), resident in
1236 Vienna, Schreckgasse 13, managing director and sole shareholder of
Purchaser, has been employed by the Company for the last 6 (six) years in a
senior position;
WHEREAS, subject to the terms and conditions set forth in this
Agreement, Seller desires to sell all of its right, title and interest in the
Share Quota and Purchaser desires to purchase such Share Quota from Seller.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties herein contained, the parties agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms shall have the following
meanings for the purposes of this Agreement:
"Accounts Payable shall have the meaning set forth in Section 2.5;
Holdback"
"Agreement" shall mean this Share Purchase Agreement,
including all schedules hereto;
"Bond" shall have the meaning set forth in Section
2.5(a);
"Business" shall have the meaning set forth in the recitals
to this Agreement;
"Business Day" shall mean any day of the year other than (i) any
Saturday or Sunday or (ii) any other day on which
banks located in Austria are closed for business;
"Chapter 11 Case" shall mean that Seller, along with certain of its
affiliates, has filed a voluntary petition for
relief commencing a case under Chapter 11 of
Title 11 of the United States Code, 11
U.S.C.ss.ss.101 et seq., as amended, in the
United States Bankruptcy Court for the Northern
District of Illinois.
"Closing Date" shall mean the date of execution of this
Agreement;
"Comdisco Trademark" shall have the meaning as set forth in Section
5.3;
"Company" shall have the meaning set forth in the recitals
to this Agreement;
"Czech Subsidiary" shall have the meaning as set forth in Section
5.1;
"Duty Claim" shall have the meaning set forth in Section
2.5(c);
Numbers preceded by the shall mean amounts in Euros;
symbol "(euro)"
"Excluded Contracts" shall mean those contracts described in Schedule
A as defined in Section 2.2;
"Governmental Authority" shall mean the government of the United States or
any foreign country or any state or political
subdivision thereof and any entity, body or
authority exercising executive, legislative,
judicial, regulatory or administrative functions
of or pertaining to government, including
quasi-governmental entities established to
perform such functions;
"Holdback" shall have the meaning set forth in Section 2.5;
"Limitation Period" shall have the meaning set forth in Section 8.1;
"Liquidation" shall have the meaning set forth in Section 5.1;
"Material Adverse Effect" means any event, condition, or matter in respect
of the operation of the Business or the Share
Quota that results in or has a material adverse
effect on the business, financial condition or
operations of the Business taken as a whole;
provided, however, that, the effects of changes
that (i) are generally applicable to (A) the
industries and markets in which the Business
operates or (B) the United States and global
economies or (ii) relate to foreign currency
exchange rate fluctuations, shall in each case be
excluded from the determination of Material
Adverse Effect; and provided, further, that any
adverse effect on the Business, taken as a whole,
resulting from the execution of this Agreement
and the announcement of this Agreement, the
Chapter 11 Case and the announcement of the
Chapter 11 Case and the other transactions
contemplated by this Agreement shall also be
excluded from the determination of Material
Adverse Effect;
"Non-Recourse Note" shall mean the note attached as Schedule B as
defined in Section 2.2;
"Purchase Price" shall have the meaning set forth in Section 2.3;
"Purchaser" shall have the meaning set forth in the recitals
to this Agreement;
"Seller" shall have the meaning set forth in the recitals
to this Agreement;
"Share Quota" shall have the meaning set forth in the recitals
to this Agreement;
"Signing" means the signing of this Agreement;
"Tax Holdback" shall have the meaning set forth in Section 2.5;
"Tax Investigation" shall have the meaning set forth in Section
2.5(b);
"Trademark" shall mean U.S. and foreign registered and
unregistered trademarks, service marks, logos,
trade names, corporate names and all
registrations and applications to register the
same;
"Trustee" shall have the meaning as set forth in Section
2.5. The contact person at the Trustee is Dr.
Rudolf Kaindl, (address: 1220 Vienna,
Donaustadtstrasse 1, phone number: +43 1 203 35
05, facsimile number: +43 1 203 35 05 14);
ARTICLE II
SALE AND PURCHASE OF the SHARE QUOTA
2.1 Sale and Purchase. Effective as of the Closing Date and subject
to the terms and conditions set forth herein, in particular, but without
limitation to Articles VI and VII, and pursuant to Sections 105 and 363 of the
Bankruptcy Code, Seller shall sell and transfer and Purchaser shall purchase
and accept from the Seller all rights, title and interest in the Share Quota
with all the rights attached or accruing to them at the Closing Date.
2.2 Excluded Contracts. Notwithstanding anything contained in this
Agreement to the contrary, all contracts concluded by the Company set forth in
Schedule A (collectively, the "Excluded Contracts") shall be transferred from
the Company to any other entity within the Seller's group at the sole
discretion of Seller. Should Seller - in its sole discretion - choose to not
transfer any or all of the Excluded Contracts, Purchaser shall or shall cause
the Company to continue to complete such contracts on Seller's behalf. In this
context, the Purchaser shall or shall cause the Company to collect any and all
claims the Company may have under such contracts, including, without
limitation, any receivables on behalf of the Seller, and shall or shall cause
the Company to remit such collected claims and/or amounts within 10 (ten)
Business Days to a bank account to be designated by the Seller. Purchaser
shall or shall cause the Company to diligently seek to collect all such claims
and/or amounts as and when due. As soon as and to the extent that Seller
desires to have the Excluded Contracts transferred to any entity of the
Seller's group at its sole discretion, Purchaser will immediately take or
cause the Company to take all steps necessary or desirable to complete the
transfer of any Excluded Contracts remaining within the Company after the
Closing Date in accordance with the instructions of Seller.
In addition to the aforesaid, Seller and the Company will enter into
a non-recourse note agreement in the form attached hereto as Schedule B (the
"Non-Recourse Note"). Purchaser hereby acknowledges and agrees that this
Agreement shall be null and void and the transfer of the Share Quota shall be
deemed not to have occurred if Purchaser fails to cause the Company to duly
sign and deliver the Non-Recourse Note by noon on the day following the
Closing Date. Should Purchaser fail to deliver the Non-Recourse Note duly
signed by the Company by noon on the day following the Closing Date, Purchaser
shall immediately re-transfer the Share Quota to Seller; if Purchaser fails to
timely re-transfer the Share Quota, the Trustee shall, upon Seller's request,
immediately disburse the Holdback to Seller, and Seller shall only be
obligated to transfer to Purchaser the Holdback and the Purchaser Price, less
any damages and costs directly or indirectly incurred by Seller as a result of
Purchaser's failure to act in accordance with this provision, upon the
re-entry, in the commercial register, of Seller as owner of the Share Quota.
2.3 Purchase Price. At the Closing Date and in consideration for the
Share Quota, the Purchaser shall pay (euro) 8,733,200.71 (eight million seven
hundred thirty-three thousand two hundred 71/100) by transfer of immediately
available funds to the Seller's account at Bank of America, Amsterdam, account
number 600415869015, bank sort code BOFANLNX and the amount of (euro)
633,424.73 (six hundred thirty-three thousand four hundred twenty four 73/100)
to the Trustee (the " Purchase Price"). Purchaser acknowledges and agrees that
the Purchase Price - as determined by the Company's auditors - is fair and
based on the book value of the Company's net assets under US GAAP as of the
Closing Date in accordance with the method of determination proposed by the
Purchaser. Purchaser hereby expressly waives any and all claims he may have,
including, without limitation, any claims under ss.ss. 869-877 ABGB
(Allgemeines Burgerliches Gesetzbuch, RGBl 1859/217, as amended), relating to
the determination, the amount and the payment of the Purchase Price.
2.4 Payment of Purchase Price. Purchaser acknowledges and agrees that
the effectiveness of this Agreement and the Seller's obligation to transfer
the Share Quota is contingent upon the Seller's receipt of the Purchase Price.
Purchaser shall transfer the Purchase Price in a manner that puts Seller in a
position to get written confirmation of receipt of the funds on the account
set forth in Section 2.3 and from the Trustee at the time of execution of this
Agreement.
2.5 Holdback. Seller and Purchaser acknowledge and agree that Dr.
Rudolf Kaindl, notary public, 1220 Vienna, Donaustadtstrasse 1, shall act as
trustee (the "Trustee") and clearing agent for purposes of holding a portion
of the Purchase Price in the amount of (euro) 633,424.73 (six hundred thirty
three and four hundred twenty-four 73/100) which shall be designated as the
"Holdback". The Trustee shall hold the Holdback plus any interest accrued
thereon in an escrow account until a date to be agreed upon by Seller and
Purchaser. Notwithstanding the foregoing, (euro) 580,000 (five hundred and
eighty thousand) thereof (the "Tax Holdback") plus any interest accrued shall
be disbursed to the Seller no later than the last day of the statute of
limitations for the stamp duties on the Austrobond (see (a) below), if any,
i.e., December 31, 2004, and (euro) 53,424.73 (fifty-three thousand four
hundred and twenty-four 73/100) thereof (the "Accounts Payable Holdback") plus
any interest accrued shall be disbursed to the Seller no later than the last
day of the statute of limitations governing the underlying accounts payable
(invoices to be received) (see (d) below).
Seller and Purchaser acknowledge that the Trustee (i) is acting
solely at their request and for their convenience and (ii) shall not be deemed
to be the agent of either of the parties. The fees and expenses shall be paid
one-half by the Seller and one-half by the Purchaser. Seller, Purchaser and
Trustee shall enter into a separate agreement governing the trusteeship which
is an integral part of this Agreement.
(a) The Tax Holdback or an appropriate portion thereof, as the case
may be, shall be disbursed to the Company only upon presentation of a final
decree issued by the Austrian tax authorities which decree is not subject to
appeal and states (i) that the issuance of a bond in the amount of ATS
500,000,000 (Austrian Schilling five hundred million) by the Company on
February 11 (eleven), 1999 (one thousand nine hundred ninety-nine) (the
"Bond") triggered stamp duties under the Austrian Gebuhrengesetz (BGBl
1957/267, as amended) and (ii) the amount of stamp duties resulting from the
issuance of the Bond and to be paid by the Company.
(b) Upon the expiration of the period provided for in Section 2.5,
i.e. on January 1, 2005, or at any time prior to this date when an
investigation of the Bond by the Austrian tax authorities (a "Tax
Investigation") ends (i) without the issuance of a decree requesting payment
of stamp duties in connection with the Bond, or (ii) with the issuance of a
decree levying stamp duty in connection with the Bond in an amount of less
than (euro) 580,000 (five hundred eighty thousand), the Trustee shall disburse
the Tax Holdback or the remainder thereof, as the case may be, plus accrued
interest and other income to an account designated by the Seller. The
Purchaser shall keep the Trustee fully informed about any Tax Investigation of
the Company and the results thereof.
(c) Defense. In the event that the Purchaser or the Company learns
that any tax authority is taking steps towards the collection or levying of a
stamp duty relating to the Bond (a "Duty Claim") or notice thereof is
delivered, sent, commenced or initiated against the Company by any taxing
authority after the date hereof, Purchaser shall give Seller prompt notice of
such Duty Claim, and Seller shall have the right to assume the defense (at
Seller's expense) of any such Duty Claim through counsel of Seller's own
choice by so notifying Purchaser within 30 (thirty) days of the first receipt
by Seller of such notice from Purchaser; provided, however, that any such
counsel shall be reasonably satisfactory to Purchaser. If, under applicable
standards of professional conduct, a conflict with respect to any significant
issue between the Purchaser and/or the Company and Seller exists in respect of
such Duty Claim, Seller shall pay the reasonable fees and expenses of such
additional counsel as may be required to be retained in order to eliminate
such conflict. Seller shall be liable for the fees and expenses of counsel
employed by Purchaser or the Company for any period during which Seller has
not assumed the defense of any such Duty Claim (other than during any period
in which Purchaser and/or the Company will have failed to give notice of the
Duty Claim, as provided above). If Seller assumes such defense, Purchaser
and/or the Company shall have the right to participate in the defense thereof
and to employ counsel, at their own expense, separate from the counsel
employed by Seller, it being understood that Seller shall control such
defense. If Seller chooses to defend such Duty Claim, Purchaser shall and/or
shall cause the Company to cooperate in the defense thereof, which cooperation
shall include, to the extent reasonably requested by Seller, the retention,
and the provision to Seller, of records and information reasonably relevant to
such Duty Claim, and making employees of the Company available on a mutually
convenient basis to provide additional information and explanation. If Seller
chooses to defend or prosecute any Duty Claim, Purchaser shall and/or shall
cause the Company to agree to any settlement, compromise or discharge of such
Duty Claim that Seller may recommend and that, by its terms, discharges
Purchaser and the Purchaser Affiliates from the full amount of liability in
connection with such Duty Claim; provided, however, that, Seller shall not
consent to, and Purchaser shall not be required to agree to, the entry of any
judgment or enter into any settlement that (i) provides for injunctive or
other non-monetary relief affecting Purchaser or any Affiliate of Purchaser or
(ii) does not include as an unconditional term thereof the giving of a release
from all liability with respect to such Duty Claim. For the avoidance of
doubt, Purchaser may in no event frustrate or cause the Company to frustrate
the efforts of Seller to defend the Duty Claim, including, without limitation,
by paying any amounts to the Austrian tax authorities or otherwise settling a
dispute.
(d) The Accounts Payable Holdback or an appropriate portion thereof,
as the case may be, shall be disbursed to the Company only upon presentation
of appropriate invoices in connection with the accounts payable (invoices to
be received) related to customer accounts listed in Schedule C, provided
however, that such invoices shall not have been objected to by the Seller. For
the avoidance of doubt, Purchaser acknowledges that such accounts payable
(invoices to be received) have been allocated for liabilities for which, as of
the Closing Date, Company has not received any invoices, and the Purchaser
agrees that the respective amounts shall be disbursed to Seller as soon as the
applicable statute of limitations has expired.
(e) In no event shall the Purchaser or the Company be entitled to
claim an amount in excess of (euro) 633,424.73 (six hundred thirty-three
thousand four hundred and twenty-four 73/100). Interest accruing on the
Holdback shall always be for the benefit of the Seller and may not be claimed
by or paid to the Purchaser or the Company.
2.6 Inter-Company Accounts. Seller and Purchaser acknowledge and
agree that the Company has inter-company accounts receivable owed by several
entities in Seller's group in the amount of (euro) 1,397,637.98 (one million
three hundred ninety-seven thousand six hundred and thirty-seven 98/100) and
inter-company accounts payable owing to several entities in Seller's group in
the amount of (euro) 1,729,229.58 (one million seven hundred twenty-nine and
two hundred and twenty-nine 58/100). Both parties hereby agree that Seller
shall and shall cause its group entities, as the case may be, and Purchaser
shall cause Company to settle all inter-company accounts by the close of
business on August 19 (nineteen), 2002 (two thousand two).
If at the close of business on August 19 (nineteen), 2002 (two
thousand and two), Purchaser has failed to cause the Company to fulfill its
payment obligations, as set forth in this Section 2.6 (i.e. by causing the
Company to transfer (euro) 331,591.60 (three hundred thirty-one thousand five
hundred and ninty-one 60/100) to the bank account of Seller (Section 2.1)),
Purchaser hereby acknowledges and agrees that this agreement shall be null and
void and the transfer of the Share Quota shall be deemed not to have occurred.
In such case Purchaser shall immediately re-transfer the Share Quota to
Seller; if Purchaser fails to timely re-transfer the Share Quota, the Trustee
shall, upon Seller's request, immediately disburse the Holdback to Seller (and
the Holdback shall be deemed to be forfeited by the Purchaser), and Seller
shall only be obligated to transfer to Purchaser the Holdback and the
Purchaser Price, less any damages and costs directly or indirectly incurred by
Seller as a result of Purchaser's failure to act in accordance with this
provision, upon the re-entry, in the commercial register, of Seller as owner
of the Share Quota.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
The parties acknowledge that Purchaser has been employed by the
Company for 6 (six) years in a senior position and therefore has comprehensive
and detailed insider knowledge of the Business and the legal and commercial
condition of the Company. The Seller represents and warrants to Purchaser, as
of the date of this Agreement and as of the Closing Date (as if such
representations and warranties were remade on the Closing Date), as follows:
3.1 Due Incorporation and Ownership.
(a) Seller is duly organized, validly existing and in good standing
under the laws of the State of Delaware, with all requisite power and
authority to own foreign investments and to carry on its respective businesses
as it is now being owned and conducted. The Company is duly organized and
validly existing under the laws of Austria.
(b) Seller is the beneficial and of record owner of the Share Quota.
The Share Quota is clear and free of any liens or similar encumbrances.
3.2 Authority; Consents and Approvals.
(a) The Seller has the corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder. The execution,
delivery and performance of this Agreement by the Seller and the consummation
by the Seller of the transactions contemplated hereby have been duly
authorized by its Board of Directors. This Agreement has been duly and validly
executed and delivered by the Seller and (assuming this Agreement constitutes
a valid and binding obligation of the Purchaser) constitutes a valid and
binding agreement of the Seller, enforceable against the Seller in accordance
with its terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors' rights generally from time to
time in effect and to general equitable principles.
(b) No consent, approval, or authorization of, or declaration, filing
or registration with, any Governmental Entity is required to be made or
obtained by the Seller in connection with the execution, delivery and
performance of this Agreement and the consummation of the transaction, except
(a) for consents, approvals or authorizations of the Seller's Board of
Directors, and (b) for consents, approvals, authorizations, declarations,
filings or registrations, which, if not obtained, would not, individually or
in the aggregate, have a Material Adverse Effect.
3.3 No Other Representations or Warranties. Except as specifically
and expressly set forth in this Article III, (i) the Seller makes no
representation or warranty, express or implied, in law or in equity, relating
to the transferred Share Quota or otherwise, including, without limitation,
any representation or warranty as to value, merchantability, fitness for a
particular purpose or for ordinary purposes, or any other matter, (ii) the
Seller makes no, and hereby disclaims any, other representation and warranty
regarding the transferred Share Quota and (iii) the transferred Share Quota
being transferred to the Purchaser is conveyed on an "as is, where is" basis
as of the Closing, and the Purchaser shall rely upon its own examination
thereof, in particular its long lasting experience as employee of the Company.
Without limiting the generality of the foregoing, the Seller makes no
representation or warranty regarding any assets other than expressly set forth
above, and none shall be implied by law or in equity.
3.4 Seller's Limitation on Liability. The Purchaser shall not be
entitled in any event to any lost profits, indirect, consequential, liquidated
or other damages in respect of any claim or claims, including, without
limitation, any claim or claims under the Seller's representations and
warranties. Purchaser hereby expressly waives any entitlements or claims to
damages other than direct damages directly resulting from an intentional
breach by Seller of the Seller's representations and warranties. No claim
shall be brought against the Seller in respect of any of the Seller's
representations and warranties unless the Purchaser shall have given to the
Seller written notice of such claim specifying in detail the matter which
gives rise to the claim, the nature of the claim and the amount claimed in
respect thereof on or before the date which is one month after the Closing
Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller, as of the date of this
Agreement and as of the Closing Date (as if such representations and
warranties were remade on the Closing Date), as follows:
4.1 Power, Authority and Consents. Purchaser has the requisite power
and authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. This Agreement has been duly executed and
delivered by Purchaser and constitutes a valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with and subject to its
terms, subject to applicable bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights and general principles of equity
and by equitable limitations on the availability of specific remedies.
4.2 Familiarity with the Company's Business. Due to his long term top
level employment with the Company, Purchaser is familiar and has in
depth-insider knowledge of every aspect of the Company's business and the
Business.
4.3 Financial Capacity of Purchaser. Purchaser has the financial
capacity to pay the Purchase Price and the Adjusted Purchase Price when due
and payable.
ARTICLE V
COVENANTS AND FURTHER OBLIGATIONS
5.1 Funds for Liquidation of Czech Subsidiary. Comdisco Ceska
republika s.r.o. is a Czech company with limited liability with its corporate
seat in 11000 Prague 1, Klimentska 46 and registered with the commercial
register at the commercial court in Prague under register number 25 74 17 81.
Comdisco Ceska republika s.r.o. is a fully owned subsidiary of the Company
(the "Czech Subsidiary"). It is the intention of both parties to wind-up and
de-register (the "Liquidation") the Czech Subsidiary. Seller and Purchaser
acknowledge that at the Closing Date, the liquid funds available to the Czech
Subsidiary amount to (euro) 65,000 (sixty five thousand) and that the costs
the Liquidation of the business of the Czech Subsidiary (including
de-registration) will not exceed (euro) 60,000 (sixty thousand). Purchaser
shall be responsible to take all steps necessary or desirable to ensure a
quick and cost-efficient Liquidation of the Czech Subsidiary's business by no
later than June 30, 2003. Upon completion of such Liquidation, Purchaser will
present to Seller documentation evidencing in reasonable detail the steps
taken and costs incurred by the Purchaser. Any positive difference between the
anticipated costs of Liquidation (see above, (euro) 60,000 (sixty thousand))
and the actual costs of Liquidation shall be shared on a 70 (seventy) (Seller)
: 30 (thirty) (Purchaser) basis and paid to the Seller together with any
additional funds available to the Czech Subsidiary (i.e. the difference
between (euro) 60,000 and the liquid funds available to the Czech Subsidiary
as of Closing Date) without delay. Purchaser shall pay the entire (euro)
65,000 (sixty five thousand) back to the Seller if it has not received a final
decree confirming the successful completion of the liquidation of the Czech
Subsidiary by July 1, 2003.
5.2 Cooperation after Closing. Seller and Purchaser agree to use
commercially reasonable efforts in continuing their cooperation after Closing.
In particular, but without limitation:
(a) For a period of 3 (three) months following the Closing Date,
Seller shall allow the Company to access and use the Seller's information
technology systems, for the limited purpose of accessing and processing the
Company's financial accounts, to the extent they are currently stored in
Seller's information technology system. Seller and Purchaser have entered into
a separate agreement concerning the fees and cost during this period.
Thereafter, Seller is willing to grant Company read-only access to such
information until December 31(thirty-first), 2002 (two thousand and two),
whereas Purchaser acknowledges and agrees that the Company shall no longer be
entitled to use such information for processing the Company's accounts. Seller
and the Company will enter into a separate agreement with respect to this
read-only access. Seller shall use commercially reasonable efforts to provide
access to its information technology system and shall in no event be liable
for any damage caused to the Company as a result of such access. Purchaser
shall indemnify and hold Seller harmless for any damage and cost caused by its
or the Company's access or use of the Seller's information technology.
Purchaser shall further reimburse Seller for all costs incurred by Seller as a
result of such access. Purchaser and the Company will not allow any third
party access to Seller's information technology systems and will treat all
information obtained through their access strictly confidential. Purchaser and
the Company may not use any information obtained through their access for any
purpose other than the processing of the Company's accounts. Purchaser and the
Company acknowledge and agree that access to the Seller's information
technology systems remains subject to the policies and instructions of the
Seller which Purchaser and the Company will comply with at all times.
(b) Upon Seller's request, Purchaser shall assist Seller in the
winding-up and de-registration of Seller's group subsidiaries in Poland,
Hungary and Italy, and Purchaser shall be obligated, upon Seller's request, to
assist with the administration of lease agreements of these subsidiaries, if
any, for a period of at least three months following a respective request by
Seller. Seller shall, upon the presentation of appropriate invoices, reimburse
Purchaser for any reasonable out-of-pocket expenses reasonably incurred by
Purchaser in the course of providing such services. Further, Purchaser shall
or shall cause the Company to fully cooperate and assist Seller and/or any
third parties and third party advisors nominated by Seller in the supervision
of and preparation of financials and year end closing for Switzerland for a
period of at least three months following a respective request by Seller.
(c) Seller shall use commercially reasonable efforts to provide
Purchaser or the Company with electronic copies of the Company's financial
accounts and certain information relating thereto in connection with the
business years 2000 (two thousand), 2001 (two thousand and one) and 2002 (two
thousand and two), which are in the possession of Seller.
5.3 Comdisco Trademark. Notwithstanding anything contained in this
Agreement to the contrary, it is expressly agreed that Purchaser is not
purchasing, acquiring or otherwise obtaining any right, title or interest in
any Trademark employing Seller's name or any part or variation of such name or
anything confusingly similar thereto (the "Comdisco Trademark"). Neither
Purchaser, Company nor any of their affiliates shall be entitled to retain nor
to make any use of the Comdisco Trademark. Purchaser will hold Seller fully
harmless from damages of whatever nature resulting from the use of the
Comdisco Trademark after the Closing Date.
5.4 Confidentiality. Each party to this Agreement will not
intentionally disclose, and will use its best efforts to prohibit the
unintentional disclosure, to any third party except to its employees, advisers
and/or Governmental Authorities, or otherwise required by any applicable law,
of any confidential or proprietary information concerning the other party or
its processes, inventions, formulae, customers, suppliers, or any trade
secret, unless the disclosure is expressly assented to in writing. This
obligation will survive termination of this Agreement for a period of 3
(three) years. All information furnished to one party by the other party will
be considered confidential or proprietary information, unless otherwise so
indicated by the party furnishing the information. For the avoidance of doubt,
Seller may also disclose information which would otherwise be deemed
confidential to the extent it is required to do so under the rules or
regulations of any stock exchange or governmental body.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser under Article II of this Agreement are
subject to the satisfaction or waiver by Purchaser of the following conditions
precedent on or before the Closing Date:
Board Approval. Seller shall confirm that prior to the Closing Date,
its Board of Directors has voted in favor of the sale of the Share Quota as
contemplated hereunder.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller under Article II of this Agreement are
subject to the satisfaction or waiver by Seller of the following conditions
precedent on or before the Closing Date:
7.1 Warranties True as of Closing Date. Each of the representations
and warranties of Purchaser set forth in this Agreement, disregarding all
qualifications and exceptions contained therein relating to materiality or
Material Adverse Effect, shall be true and correct in all material respects as
of the date of this Agreement (except to the extent that such representations
and warranties are expressly limited by their terms to another date, in which
case such representations and warranties shall be true and correct as of such
other date), and Seller shall have received a certificate (which certificate
may be qualified by "knowledge" to the same extent as the representations and
warranties of Purchaser contained herein are so qualified) signed on behalf of
Purchaser by an authorized officer of Purchaser, in such capacity, to such
effect.
7.2 Compliance with Agreements and Covenants. Purchaser shall have
performed and complied in all material respects with all of its covenants,
obligations and agreements required to be performed by it under this Agreement
at or prior to the Closing Date.
7.3 No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other order issued by any Governmental
Authority of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the transactions contemplated by this Agreement
shall be in effect.
7.4 Board Approval. Seller shall confirm that prior to the Closing
Date, its Board of Directors has voted in favor of the sale of the Share Quota
as contemplated hereunder.
7.5 Payment of the Purchase Price. Purchaser shall have transferred
the amount of (euro) 8,733,200.71 (eight million seven hundred thirty-three
thousand and two hundred 71/100) to the Seller's account at Bank of America,
Amsterdam, account number 600415869015, bank sort code BOFANLNX and the amount
of (euro) 633,424.73 (six hundred thirty-three thousand and four hundred
twenty-four 73/100) to the Trustee and both Bank of America and Trustee shall
have confirmed to Seller in writing that the Purchase Price has been
transferred in immediately available funds and received by Bank of America and
Trustee. For the avoidance of doubt the Seller shall not be obligated to
transfer the Share Quota and the Share Quota shall not be transferred to
Purchaser prior to the receipt of the confirmations described above.
ARTICLE VIII
REMEDIES, INDEMNIFICATION
The Purchaser shall be entitled to claim direct damages directly resulting
from an intentional breach by the Seller of the Seller's representations and
warranties subject to the limitations set forth in Section 3.4.
If the Purchaser becomes aware that there has been a material breach of the
Seller's warranties or any other term of this Agreement, the Purchaser shall
not be entitled to rescind or avoid this Agreement or treat this Agreement as
terminated but shall only be entitled to claim damages or exercise any other
right, power or remedy under this Agreement.
8.1 Indemnification by Purchaser. Purchaser agrees to indemnify
Seller and each of its respective officers, directors, employees, agents and
representatives against, and agrees to hold each of them harmless from, any
and all losses incurred or suffered by them and discovered during a period of
36 (thirty sixt) months following the Closing Date (the "Limitation Period")
relating to or arising out of or in connection with any of the following:
(a) any breach of or any inaccuracy in any representation or warranty
made by Purchaser in this Agreement or any document delivered at the Closing
Date; provided, however, that a notice of the claim by Seller shall have been
given to Purchaser not later than the close of business on the last day of the
applicable Limitation Period; or
(b) any breach of or failure by Purchaser to perform any covenant or
obligation of Purchaser set out or contemplated in this Agreement or any
document delivered at the Closing Date; provided, however, that a notice of
the claim by Seller shall have been given to Purchaser not later than the
close of business on the last day of the applicable Limitation Period.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. Each party hereto shall bear its own expenses with
respect to the transactions contemplated hereby, provided, however, that
Purchaser shall pay all sales, use, stamp, transfer, service and like taxes or
fees, if any, imposed by any Governmental Authority in connection with the
transfer and assignment of the Share Quota or other transactions contemplated
by this Agreement.
9.2 Amendment. This Agreement may be amended or supplemented only by
an instrument in writing executed by the party against whom enforcement is
sought.
9.3 Notices. Any notice, request, instruction or other document to be
given hereunder by a party hereto shall be in writing and shall be deemed to
have been given, (a) when received if given in person or by courier or a
courier service, or (b) on the date of transmission if sent by telex,
facsimile or other wire transmission so long as a copy is delivered by
overnight courier the next Business Day:
(a) If to Seller, addressed as follows:
Comdisco Inc.
6111 North River Road
Rosemont, Illinois 60018
Attention: Robert E.T. Lackey
Telephone: +1 847 518 5208
Facsimile: +1 847 518 5088
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
Schwarzenbergplatz 6
A-1030 Vienna
Attention: Albert Adametz and
Andreas Frohner
Telephone: +43 1 710 77 300
Facsimile: +43 1 710 77 303
(b) If to Purchaser, addressed as follows:
PH Holding GmbH
Reischachstrasse 3/12A
A-1010 Vienna
Attention: Peter Huber
Telephone: +43 1 512 89 90
Facsimile: + 43 1 512 94 09
or to such other individual or address as a party hereto may designate for
itself by notice given as herein provided.
9.4 Waivers. The failure of a party hereto at any time or times to
require performance of any provision hereof shall in no manner affect its
right at a later time to enforce the same. No waiver by a party of any
condition or of any breach of any term, covenant, representation or warranty
contained in this Agreement shall be effective unless in writing, and no
waiver in any one or more instances shall be deemed to be a further or
continuing waiver of any such condition or breach in other instances or a
waiver of any other condition or breach of any other term, covenant,
representation or warranty.
9.5 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
9.6 Interpretation. The headings preceding the text of Articles and
Sections included in this Agreement and the headings to Schedules attached to
this Agreement are for convenience only and shall not be deemed part of this
Agreement or be given any effect in interpreting this Agreement. The use of
the masculine, feminine or neuter gender herein shall not limit any provision
of this Agreement. The use of the terms "including" or "include" shall in all
cases herein mean "including, without limitation" or "include, without
limitation," respectively. Underscored references to Articles, Sections,
Subsections or Schedules shall refer to those portions of this Agreement.
Consummation of the transactions contemplated herein shall not be deemed a
waiver of a breach of or inaccuracy in any representation, warranty or
covenant or of any party's rights and remedies with regard thereto. No
specific representation, warranty or covenant contained herein shall limit the
generality or applicability of a more general representation, warranty or
covenant contained herein. A breach of or inaccuracy in any representation,
warranty or covenant shall not be affected by the fact that any more general
or less general representation, warranty or covenant was not also breached or
inaccurate.
9.7 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Illinois without
regard to the rules of conflict of laws of the State of Illinois or any other
jurisdiction. Each of the parties hereto irrevocably and unconditionally
consents to submit to the jurisdiction of the Courts of Illinois for any
litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating
thereto except in such court), waives any objection to the laying of venue of
any such litigation in the Courts of Illinois. Notwithstanding the aforesaid,
local laws shall be applicable where mandatory.
9.8 Assignment. Purchaser must not assign this Agreement without the
prior written consent of the Seller, and any such prohibited assignment shall
be void. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the respective legal representatives, successors,
assigns, heirs, and devisees of the parties.
9.9 No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and, to the extent provided herein, their
respective affiliates, directors, officers, employees, agents and
representatives, and no provision of this Agreement shall be deemed to confer
upon other third parties any remedy, claim, liability, reimbursement, cause of
action or other right.
9.10 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event
after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included, unless such last
day is a Saturday, Sunday or legal holiday, in which event the period shall
run until the end of the next day which is neither a Saturday, Sunday or legal
holiday. The last day of any period of time described herein shall be deemed
to end at 5:00 p.m., local time (Austria).
9.11 Further Assurances. Upon the reasonable request of Purchaser,
Seller shall on and after the Closing Date execute and deliver to Purchaser
such other documents, releases, assignments and other instruments as may be
required to effectuate completely the transfer and assignment to Purchaser of,
and to vest fully in Purchaser title to, the Share Quota, and to otherwise
carry out the purposes of this Agreement.
9.12 Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
9.13 Entire Understanding. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements,
arrangements and understandings between the parties.
Vienna, August 14, 2002
COMDISCO, INC.
By: /s/ Bing Chen
---------------------
Name: Bing Chen
Title: Attorney-in-Fact
PH HOLDING GMBH
By: /s/ Peter Huber
--------------------
Name: Peter Huber
Title: Managing Director
Signed pursuant to Sections
54 et sequ. Notaries Act:
/s/ Dr. Rudolf Kaindl
- -------------------------
Offentl. Notar.
Civil Law Notary
<page>
Schedule A
Excluded Contracts
1. Amendment No. 1 to Equipment Schedule No. 1 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
2. Amendment No. 1 to Equipment Schedule No. 2 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
3. Amendment No. 1 to Equipment Schedule No. 3 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
4. Amendment No. 1 to Equipment Schedule No. 5 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
5. Amendment No. 1 to Equipment Schedule No. 10 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
6. Amendment No. 1 to Equipment Schedule No. 11 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
7. Amendment No. 2 to Equipment Schedule No. 24 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
<page>
Schedule B
N O N - R E C O U R S E N O T E
(SCHULDVERSCHREIBUNG)
August 14, 2002
For value received, Computer Discount GmbH, an Austrian Limited Liability
Company ("Payor"), registered under FN 81059f with the Commercial Court in
Vienna, promises to pay to Comdisco, Inc. or its assigns ("Holder"), the
principal sum of seven hundred eighty-five thousand two hundred and fourteen
Euros and fifty-seven Eurocents ((euro) 785,214.57).
As security for the prompt and complete payment of all indebtedness evidenced
by this Note and for certain other obligations of Payor set forth below, Payor
has agreed to grant Holder a security interest in the property hereinafter
described.
NOW THEREFORE, in consideration of the foregoing and the mutual promises and
other agreements hereinafter contained, Payor hereby agrees with Holder for
its benefit as follows:
1. Payment.
(a) Upon the receipt by Payor of any payment related to the contracts
as set forth in Schedule 1 (each of them the "Contract" and collectively the
"Contracts"), notwithstanding whether such payment is an ordinary rental/lease
payment under the Contract or a purchase price payment for the lease equipment
related to the Contract, Payor shall within ten (10) business days transfer
such amount to a bank account to be designated by Holder ("Cash Receipt
Payments"). Payor and Holder acknowledge and agree that the Cash Receipt
Payments shall be secured by all assets of Payor and the limitation set forth
in Section 5 shall not apply.
(b) Upon the expiration of any Contract, or Holder's demand for early
return of title, Payor shall within ten (10) business days transfer title in
any equipment related to such Contract to Holder ("In Kind Payment").
(c) All such Cash Receipt Payments or In Kind Payments shall be
deemed to be payments under this Note.
2. Default by Payor. The entire unpaid principal balance of this Note shall
become immediately due and payable upon the failure of Payor to make any Cash
Receipt or In Kind Payment in accordance with Section 1.
3. Waiver of Demand Etc. Payor hereby waives demand, presentment, protest,
notice of nonpayment, notice of protest and any and all lack of diligence or
delays which may occur in collection of this Note, if any.
4. Security. Payor hereby grants to Holder a continuing exclusive first
priority security interest (ausschlie(beta)liches Pfandrecht) in the property
of Payor related to the Contracts (as listed in the equipment schedules) set
forth in Schedule A hereof, wherever located, whether the same is now owned or
hereafter acquired as a collateral for this Note (the "Collateral"). Payor
acknowledges and agrees that it has the sole responsibility of information and
other steps required and desirable in order to comply with legal publicity and
announcement standards under the applicable laws in connection with this
security interest. Payor and Holder acknowledge and agree that the Collateral
is collateral security for the prompt payment or performance in full when due,
whether at stated maturity, by acceleration or otherwise of all obligations
now or hereafter arising under this Note.
5. Non-Recourse. This Note is secured by the Collateral in favor of the
Holder. Except as expressly provided in Section 1 (a) , and except as
hereinafter provided, in any action commenced to enforce the obligations of
the Payor created or arising hereunder, the judgment shall not be enforceable
personally against the Payor or against any assets of the Payor other than the
Collateral conveyed or encumbered in or otherwise covered by the security
interest. Recourse for any violation or breach of the terms of this Note shall
be only against the Collateral and any such judgment shall not be subject to
execution on, nor be a lien on, any other assets of the Payor. Notwithstanding
the foregoing, however, the Payor would be liable absent the foregoing
nonrecourse provisions: (i) for any intentional fraud or misrepresentation by
the Payor in connection with the delivery or performance of this Note (ii) for
the retention in violation of this Note of any payments, income or other
property or proceeds arising with respect to the Collateral; (iii) for the
fair market value of any other rights, interests or property comprising the
Collateral removed or disposed of by the Payor (iv) for the retention or
misapplication of any proceeds under any insurance policies or awards
resulting from condemnation or the exercise of the power of eminent domain, or
by reason of damage, loss, or destruction of any portion of the Collateral;
(v) for damage to the Collateral from waste or the failure of the Payor to
maintain, repair, protect and preserve the Collateral. The holder hereof shall
have the right to recover its damages hereunder in a separate proceeding
brought for that purpose, or in any foreclosure action under this Note and the
Payor's liability under this paragraph shall survive foreclosure under this
Note and the holder hereof may pursue against the Payor all of such holder's
rights and remedies thereunder or at law or equity, notwithstanding any such
foreclosure.
6. Miscellaneous.
(a) Binding Agreement. The terms and conditions of this Note shall
inure to the benefit of and be binding upon the respective successors and
assigns of Payor and Holder. Nothing in this Note, express or implied, is
intended to confer upon any third party any rights, remedies, obligations, or
liabilities under or by reason of this Note, except as expressly provided in
this Note.
(b) Governing Law. This Note shall be governed by and construed under
the laws of Austria.
(c) Construction. The titles and subtitles used in this Note are used
for convenience only and are not to be considered in construing or
interpreting this Note. The language of this Note shall be construed according
to its fair meaning and not strictly for or against any party.
(d) Notices. All notices, requests, demands and other communications
under this Note shall be in writing and shall be deemed to have been duly
given on the date of service if served personally or by facsimile (with
electronically verified receipt) on the party to whom notice is to be given,
or on the third day after mailing if mailed to the party to whom notice is to
be given by registered or certified mail, postage prepaid, and properly
addressed as follows:
To Payor: COMPUTER DISCOUNT GMBH
Mahlerstrasse 7/22
A-1010 Vienna
Austria
Attn: Peter Huber
To Holder: COMDISCO INC.
6111 North River Road
60018 Rosemont, Illinois
U.S.A.
Attn: Kathryn Chapman
With a copy to: Skadden Arps
Schwarzenbergplatz 6
A-1030 Vienna
Austria
Attn: Albert Adametz
Andreas Frohner
Any party may change its address for purposes of this Section by
giving the other parties written notice of the new address in the manner set
forth above.
(e) Modification; Waiver. No modification to this Note, nor any
waiver of any rights, shall be effective unless assented to in writing by the
party to be charged, and the waiver of any breach or default shall not
constitute a waiver of any other right or any subsequent breach or default.
(f) Severability. If any of the provisions of this Note are
determined to be invalid, illegal, or unenforceable, such provisions shall be
modified to the minimum extent necessary to make such provisions enforceable,
and the validity, legality, and enforceability of the remaining provisions of
this Note shall continue in full force and effect to the extent the economic
benefits conferred upon Payor and Holder by this Note remain substantially
unimpaired.
(g) Non-Payment. If this Note or any installment of principal or
interest is not paid when due, whether at maturity or by acceleration, the
Payor promises to pay all costs of collection, including, without limitation,
actual attorney's fees, and all expenses in connection with the protection or
realization of the Collateral securing this Note or the enforcement of any
guaranty hereof incurred by the holder hereof on account of such collection,
whether or not suit is filed hereon or thereon; such costs and expenses shall
include, without limitation, all costs, expenses and attorney's fees actually
incurred by the holder hereof in connection with any insolvency, bankruptcy,
arrangement or other similar proceedings involving the Payor, which in any way
affects the exercise by the Holder hereof of its rights and remedies under
this Note. As used herein, "actual attorney's fees" or "attorney's fees
actually incurred" means the full and actual cost of any legal services
actually performed in connection with the matter for which such fees are
sought calculated on the basis of the usual fees charged by the attorneys
performing such services, and shall not be limited to "reasonable attorneys'
fees" as that term may be defined in statutory or decisional authority.
(h) Assignment. Purchaser must not assign this Note without the prior
written consent of the Seller, and any such prohibited assignment shall be
void. Subject to the foregoing, this Note shall be binding upon and inure to
the benefit of the respective legal representatives, successors, assigns,
heirs, and devisees of the parties.
(i) Entire Agreement. This Note constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically
set forth herein.
In Witness Whereof, both parties have caused this Note to be executed
by its duly authorized officers or attorneys-in-fact as of the date first
written above.
COMPUTER DISCOUNT GMBH
By: /s/ Peter Haber
---------------------------------
Peter Huber, Managing Director
COMDISCO, INC.
By: /s/ Bing Chen
---------------------------------
Bing Chen, Attorney-in-Fact
<page>
Schedule 1
1. Amendment No. 1 to Equipment Schedule No. 1 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
2. Amendment No. 1 to Equipment Schedule No. 2 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
3. Amendment No. 1 to Equipment Schedule No. 3 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
4. Amendment No. 1 to Equipment Schedule No. 5 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
5. Amendment No. 1 to Equipment Schedule No. 10 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
6. Amendment No. 1 to Equipment Schedule No. 11 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
7. Amendment No. 2 to Equipment Schedule No. 24 between Comdisco Austria
GmbH and Celestica Italia S.r.l.
<page>
Schedule C
List of invoices to be received in the escrow account
the statute of limitation has not yet run
<table>
<caption>
1998/1999 Wango lease assets Wango ReifenvertriebsgmbH, Linz 1.453,46
EMC ITA lease assets PFH Computers, Cork, Ireland 35.002,87
- ----------------- -------------------------- ---------------------------- ------------------------------------- ---------------
36.456,33
<s> <c> <c> <c> <c> <c>
1999/2000 Datacontact lease assets B.O.T Datacontact / Metro GmbH, Wien 12.516,83
OMV lease assets Support EDV GmbH, Wien 2.138,76
Naintsch lease assets Computercenter France SA, Paris 1.380,55
missing credit note JET missing credit note to be GE Capital GmbH, Wien -2.176,69
received
- ----------------- -------------------------- ---------------------------- ------------------------------------- ---------------
13.859,45
2000/2001 IT Austria missing credit note to be IT Austria GmbH, Wien 545,05
issued
2000/2001 OMV lease assets Support EDV GmbH, Wien 2.563,90
- ----------------- -------------------------- ---------------------------- ------------------------------------- ---------------
3108,95
TOTAL 53.424,73
==========
</table>