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THIS AGREEMENT dated for reference the 31st day of January, 2000,
BETWEEN:
EURO TRADE & FORFAITING, INC., a corporation organized
under the laws of the State of Utah, U.S.A., having an office
at 9 King Street, Third Floor, London, EC2V8EA, England
AND:
MFC BANCORP LTD., a corporation organized under the laws
of the Yukon Territory, Canada, having an office at 6 Rue
Charles-Bonnet, 1206 Geneva, Switzerland
WHEREAS:
A. MFC is in the financial services business and, inter alia, provides
financial consulting, administrative and management services to other
companies, firms and entities, from time to time; and
B. Euro desires to engage MFC to exclusively operate and manage Euro's
business upon the terms set out herein.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
respective agreements hereinafter set forth, and for other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto acknowledge, declare, covenant and agree
as follows:
ARTICLE 1
INTERPRETATION
Section 1.1 Definitions. When used in this Agreement (including
the recitals and any schedules hereto) or in any amendment hereto, the
following terms shall, unless otherwise expressly provided, have the
following meanings, respectively:
"Agreement" means this administrative and management services agreement,
as supplemented, amended or otherwise modified, extended, renewed or
replaced from time to time and the expressions "Article" and "Section"
followed by a number mean and refer to the specified Article or Section of
this Agreement;
"Administrative Services" means the coordination and administration of all
securities regulatory filings for and on behalf of Euro, including,
without limitation, liaison with auditors, accountants and lawyers and
supervision, coordination and integration of all such filings
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including all required filings with the Securities and Exchange Commission
in the United States and other regulatory bodies;
"Affiliate" means, with respect to any given Person, any other Person
directly or indirectly Controlling, Controlled by or under common Control
with, such Person;
"Boards" means the boards of directors of Euro and Euro Trade and "Board"
means any one such board of directors, as the context may require;
"Business" means the business of Euro;
"Cascade" means North Cascade Limited, a corporation organized under the
laws of the British Virgin Islands;
"Collingwood" means Collingwood Investments Limited, a corporation
organized under the laws of the Bahamas;
"Control" over a Person means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities or
other equity interests, representation on its board of directors or body
performing similar functions, by contract or otherwise. The terms
"Controlling" and "Controlled" will have corollary meanings;
"Derivative Instrument" means any instrument whose value depends, in whole
or to a substantial part, upon the value of a related asset or a liability
and that is commonly referred to or considered a "derivative" in capital
markets;
"Effective Date" means January 1, 2000;
"Euro" means Euro Trade & Forfaiting, Inc.;
"Euro Trade" means Euro Trade & Forfaiting Company Limited, a company
organized under the laws of England;
"Event of Bankruptcy" means, in respect of any Person, that such Person
shall generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally as they become due, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any such Person seeking to
adjudicate it a bankrupt or insolvent or seeking liquidation, winding-up,
a reorganization, arrangement, adjustment, protection, relief or a
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or for the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of
its property and, in the case of any such proceeding instituted against
such Person (but not instituted by such Person), either such proceeding
shall remain undismissed or unstayed for a period of 30 days or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against such Person or for the appointment of
a
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receiver, trustee, custodian or other similar official for such Person or
for any substantial part of its property) shall occur; or such Person
shall take any action to authorize any of the actions set forth above;
"Financial Year" means, in relation to Euro, a financial year commencing
on July 1 of a calendar year and ending on June 30 of the following
calendar year;
"GAAP" means, at any time, accounting principles generally accepted in the
United States, applied on a consistent basis;
"Initial Asset Value" means the Net Asset Value as at December 31, 1999;
"Initial Asset Value per Euro Share" means the Initial Asset Value divided
by the total number of issued and outstanding common shares of Euro, on a
fully-diluted basis, as at December 31, 1999;
"Merchant Bank" means MFC Merchant Bank S.A., a bank organized under the
laws of Switzerland;
"MFC" means MFC Bancorp Ltd.;
"Net Asset Value" means an amount equal to the value of the total assets
of Euro less the total liabilities of Euro calculated in accordance with
GAAP;
"Option" means an option to purchase, in whole or in part, the Option
Shares;
"Option Exercise" means an exercise of the Option, from time to time, by
delivery of an Option Notice to Euro;
"Option Notice" means a written notice of an Option Exercise delivered to
Euro, or a similar notice by telephone, confirmed promptly by written
notice, which shall specify therein: (i) the number of shares of Euro to
be purchased; and (ii) the aggregate Option Price payable upon such Option
Exercise;
"Option Price" means the price per common share of Euro payable upon
exercise of the Option, equal to the Initial Asset Value per Euro Share;
"Option Shares" means fully-paid non-assessable common shares of Euro
equal in number to 15% of the issued and outstanding shares of Euro, on a
fully-diluted basis, as at the Closing Date;
"Person" means an individual, a partnership, a corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a foreign state or a political
subdivision thereof or any agency of such state or subdivision;
"Quarter End" means the last business day of each fiscal quarter of Euro;
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"Services" means the Administrative Services and the Management Services;
"Subsidiary" means, at any time, as to any Person, any corporation,
partnership or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other Persons performing similar functions are at such time
directly or indirectly owned by such a Person;
"Trigger Amount" means for each calendar year an amount equal to the
Initial Asset Value multiplied by the U.S. Treasury Rate plus 9%; and
"U.S. Treasury Rate" means, for each calendar year, the average of the
quoted yields of United States Ten Year Treasury Notes as published by
Bloomberg LP at each Quarter End in such calendar year.
Section 1.2 Headings, etc. The division of this Agreement into
Articles and Sections and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of
this Agreement.
Section 1.3 Gender and Number. Words imparting the singular number
include the plural and vice-versa and words imparting gender include the
masculine, feminine and gender neutral as the context requires.
Section 1.4 Amendment. No amendment of any provision of this
Agreement shall be effective unless the same is in writing and signed by
each party hereto.
Section 1.5 Currency. Unless otherwise specified herein all
references to "dollars" or "$" shall be references to U.S. Dollars.
Section 1.6 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
ARTICLE 2
OPERATIONS AND MANAGEMENT
Section 2.1 Appointment of MFC. Euro hereby appoints MFC as the
exclusive operator and manager of the Business.
Section 2.2 Management Services. Subject always to the overall
responsibility of the Board to manage the Business and affairs of Euro,
MFC hereby agrees, at the expense of Euro and for and on behalf of and in
the name of Euro, to manage the Business and affairs of Euro, to
coordinate and supervise all activities required in connection with the
operation of the Business and to oversee the conduct of the day to day
activities and affairs of the Business, all in accordance with the terms
of this Agreement, including, without limitation, the following:
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(a) MFC will provide recommendations and assistance in connection
with the change of name of Euro to a suitable name in
conjunction with the restructuring of the Business;
(b) MFC will prepare and assist in the implementation of a plan to
refine and restructure the Business to focus upon corporate
finance, forfaiting and trading operations;
(c) MFC will liaise with accountants, lawyers and other advisors
and consultants in connection with the Business, shall
coordinate Euro's Business and financial affairs and shall
supervise and assist Euro with third party negotiations and the
completion of third party agreements in connection with the
Business; and
(d) MFC will advise Euro with respect to budgeting, audit and
finance matters and, upon becoming aware of or anticipating any
material deviation from any approved budget, will so advise
Euro.
(collectively the "Management Services")
Section 2.3 Management Fee. In consideration of the provision of
the Management Services, Euro hereby covenants and agrees to pay to MFC a
management fee during the term of this Agreement equal to 15% of the pre-
tax net income of Euro (calculated before payment of such management fee
hereunder and before any equity-based compensation costs, as determined in
accordance with GAAP) in each Financial Year calculated in accordance with
GAAP (the "Management Fee"), payable quarterly on the day that is 45 days
following each Quarter End. The quarterly advances paid to MFC hereunder
shall be adjusted within 60 days of each Financial Year end to reconcile
to pre-tax net income, before payment of the Management Fee, calculated
over such Financial Year, (provided that the Management Fee payable in
respect of any Financial Year during which MFC did not provide Management
Services for the full Financial Year will be based upon the pre-tax net
income of Euro calculated over the portion of the Financial Year during
which Management Services were provided).
Section 2.4 Administrative Services. MFC hereby agrees to provide
the Administrative Services upon the terms set out herein.
Section 2.5 Payment for Administrative Services. Euro covenants
and agrees to pay to MFC as remuneration for the provision of the
Administrative Services all expenses actually incurred by MFC in
connection with the provision of the Administrative Services including all
travel expenses, consultant, counsel and related fees and amounts paid to
third parties and all amounts reasonably allocated in respect of
management time and overhead necessary to the provision of the
Administrative Services, together with an amount equal to 15% thereof (the
"Administration Fee"). Euro shall pay the Administration Fee to MFC
commencing on the fifteenth day of the first complete month following the
Effective Date and on the fifteenth day of each month thereafter until
this Agreement is terminated in accordance with Article 9 hereof. MFC
shall invoice Euro within 10 days of each month end in connection with the
Administration
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Fee for the prior month and shall provide, upon request, such supporting
documentation and materials relating to the Administration Fee as may be
reasonably requested by Euro.
Section 2.6 Covenants. In connection with the provision of the
Services, Euro covenants and agrees with MFC as follows:
(a) To fully advise MFC of all matters relevant to the Business and
financial affairs of Euro and to furnish MFC with copies of all
financial statements, material agreements and other documents
or instruments necessary or desirable to assist MFC in
providing the Services; and
(b) To promptly inform MFC in writing, from time to time, of the
full particulars of any material change (actual, anticipated or
threatened) in the assets, liabilities (contingent or
otherwise), Business operations or capital of Euro and its
Subsidiaries considered as a whole and of any change in any
material fact which may be contained or referred to in any
completed or proposed securities regulatory filing, which is or
may be of such a nature as to make any statement of such a fact
a misrepresentation or untrue, false or misleading at the time
and in the light of the circumstances in which it was or may be
made or result in a misrepresentation therein. If Euro is not
certain as to whether a material change or change in a material
fact as aforesaid has occurred, Euro shall promptly inform MFC
of the full particulars of the event giving rise to the
uncertainty.
Section 2.7 Right of First Refusal. The obligation of MFC to
provide the Services to Euro hereunder is subject to Cascade and
Collingwood entering into an agreement providing a right of first refusal
in favour of MFC in substantially the terms set out in Schedule "B" hereto
simultaneously with the execution of this Agreement.
ARTICLE 3
CONTRACTS, STATUS AND CONFLICT OF INTEREST
Section 3.1 Contracts by Euro. MFC shall not enter into any
contract or other arrangement in relation to its duties under this
Agreement: (i) having a value or cost to Euro in excess of $1.5 million;
or (ii) in respect of any currency hedging or Derivative Instrument,
without the prior approval of the Board.
Section 3.2 Independent Contractor. Euro and MFC acknowledge and
agree that MFC is an independent contractor and not the servant, employee
or agent of Euro. Euro and MFC expressly disclaim any intention to create
a partnership or joint venture or to constitute MFC as a partner or joint
venturer of Euro.
Section 3.3 Conflicts. Each of MFC, its Subsidiaries and
Affiliates, and the directors, employees, officers and agents of MFC, its
Subsidiaries and Affiliates, may engage, simultaneously with the provision
of the Administrative Services and Management Services to Euro, in other
businesses identical with or similar to the Business (a "Competitive
Business"), and may be concerned with or interested in or lend money to,
guarantee the debts or obligations
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of, or permit its name or any part thereof to be used in connection with
one or more Competitive Businesses, and may render services similar to
those described in this Agreement to other Persons, and may be offered the
opportunity to engage in transactions that may be of interest or value to
Euro and shall not be obliged by reason of the provision of the Services
to offer any such business opportunity or opportunity to engage in any
such transaction to Euro, and shall not by reason of engaging in such
other Competitive Businesses or the rendering of such services for others
be found to be acting in conflict with the interests of Euro.
Shareholders, directors, employees, officers or agents of MFC and its
Subsidiaries and Affiliates, in their individual capacities, may be
shareholders, directors, officers, employees or agents of Euro and shall
not be deemed thereby to have interests which are in conflict with the
interests of Euro.
Section 3.4 Reliance on Counsel. MFC may consult with and rely
upon counsel in any case where it appears to MFC to be necessary or
desirable with respect to its authority and obligations under this
Agreement.
Section 3.5 Reliance on Certificates. MFC may rely and act upon
any certificates or other instruments or paper believed in good faith by
MFC to be genuine and to have been signed by any Person thereunto duly
authorized.
ARTICLE 4
BANKING ARRANGEMENTS
Section 4.1 Appointment of Bank. Euro hereby appoints Merchant
Bank as Euro's principal bank through which Euro shall conduct its banking
operations (to the extent that Merchant Bank provides the required
services) and Euro agrees to forthwith enter into such agreements and do
such acts and things as are reasonably necessary to complete and evidence
such appointment.
ARTICLE 5
OPTIONS
Section 5.1 Issuance of Options and Form of Option. In
consideration for, and as part of MFC's compensation for the Services to
be performed by it under this Agreement, Euro hereby grants the Option to
MFC. The parties hereto agree that the consideration represented by the
Option shall be deemed to be fully earned on the Effective Date. Upon the
Option becoming exercisable, in whole or in part, from time to time, Euro
shall, at the election and request of MFC, from time to time, issue a
warrant or warrants in exchange therefor to MFC, or as MFC shall direct,
in substantially the form of the warrant certificate set out in Schedule
"A" hereto.
Section 5.2 Term and Exercise of Option. (1) The Option shall
entitle MFC to purchase the Option Shares, at the Option Price, in whole
or in part, from time to time, commencing for each Option Share on the day
that the Option becomes exercisable in respect thereof in accordance with
Section 5.3 until 5:00 p.m. (Geneva time) on the day that is one year
following the termination of this Agreement.
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(2) The Option Price and the number of shares issuable upon
exercise of the Option is subject to adjustment upon the occurrence of
certain events, pursuant to the provisions of Section 5.4 of this
Agreement. Subject to the provisions of this Agreement, MFC shall have
the right, which may be exercised as expressed in the Option, to purchase
from Euro (and Euro shall issue and sell to MFC) the number of Option
Shares specified in the Option, upon delivery of an Option Notice and upon
payment to Euro of the Option Price, as adjusted in accordance with the
provisions of Section 5.4 of this Agreement, for the number of Option
Shares in respect of which such Option is then exercised. Payment of such
Option Price shall be made by certified or official bank cheque payable to
the order of Euro.
(3) Upon exercise of the Option and payment of the Option Price, as
aforesaid, Euro shall issue and cause to be delivered forthwith to or upon
the written order of MFC and in such name or names as MFC may designate, a
certificate or certificates for the number of Option Shares so purchased
upon the exercise of such Option.
Section 5.3 Timing of Option Exercise. (1) The right of MFC to
exercise the Option, in whole or in part, is subject to the following:
(a) The Option shall not be exerciseable prior to January 1, 2001;
(b) The Option may be exercised as to 33 1/3% of the Option Shares
at any time and from time to time upon the Net Asset Value
exceeding the Initial Asset Value by the Trigger Amount in any
calendar year or, in aggregate, calculated over more than one
calendar year;
(c) The Option may be exercised as to an additional 33 1/3% of the
Option Shares at any time and from time to time upon: (i) the
Net Asset Value exceeding the Initial Asset Value by twice the
Trigger Amount; or (ii) the Net Asset Value exceeding the
Initial Asset Value by the Trigger Amount in any calendar year,
having previously exceeded the Initial Asset Value by such
amount, either in aggregate over more than one calendar year or
in any one prior calendar year; and
(d) The Option may be exercised as to the final 33 1/3% of the
Option Shares at any time and from time to time upon: (i) the
Net Asset Value exceeding the Initial Asset Value by three
times the Trigger Amount; or (ii) the Net Asset Value exceeding
the Initial Asset Value by the Trigger Amount in any calendar
year, having previously exceeded the Initial Asset Value by
such amount in any two prior calendar years, or having
previously exceeded the Initial Asset Value by twice the
Trigger Amount in aggregate over more than one calendar year or
in any one prior calendar year.
(2) In calculating the aggregate Trigger Amount over more than one
calendar year as set out above, such amount shall be equal to the sum of
the Trigger Amounts in each year in respect of which the calculation is
made.
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Section 5.4 Adjustment of Option Price and Number of Option Shares.
Upon the occurrence of one or more events involving a capital
reorganization, reclassification, subdivision or consolidation of Euro's
common shares, or of the merger, amalgamation or other corporate
combination of Euro with one or more other entities or of any other event
in which new securities of any nature are delivered in exchange for common
shares and such common shares are cancelled, or of Euro paying a dividend
or making a distribution in common shares to its shareholders (each of
which is referred to herein as a "Fundamental Change"), if any Option
Exercise takes place after any such Fundamental Change, Euro shall
transfer and deliver such number of Option Shares or new securities to MFC
as would have been delivered if such Option Exercise had occurred prior to
the occurrence of such Fundamental Change.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of Euro. Euro
represents, warrants and covenants to MFC that:
(1) Euro is duly incorporated and organized and is validly
subsisting and in good standing under the laws of Utah;
(2) Any and all Option Shares issued and sold to MFC upon each
Option Exercise shall be: (i) duly and validly created and issued by
Euro; (ii) fully-paid and non-assessable; (iii) validly outstanding; and
(iv) free and clear of all liens, charges and encumbrances whatsoever;
(3) Euro has full corporate right, power and authority to enter
into and perform its obligations under this Agreement;
(4) The execution and delivery of this Agreement and the
performance by Euro of its obligations hereunder have been duly authorized
by all necessary action on the part of Euro;
(5) This Agreement has been duly executed and delivered by Euro,
and this Agreement constitutes legal, valid and binding obligations of
Euro enforceable in accordance with its terms;
(6) The authorized capital of Euro consists of 50,000,000 shares of
common stock having a par value of $0.001 per share, of which 16,945,224
shares (and no more) are outstanding;
(7) No Person, firm or corporation has any agreement or any right
capable of becoming an agreement for the purchase of any unissued shares
or securities of Euro other than options, if any, outstanding under Euro's
employee stock compensation plan, as disclosed to and approved by MFC;
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(8) The property and assets of Euro are owned beneficially by Euro
as the beneficial owner thereof with good and marketable title thereto
other than as disclosed in its most recently published quarterly reports
on Form 10-Q; and
(9) All documents filed with the Securities and Exchange Commission
relating to Euro contain no untrue statement of a material fact or omit to
state any fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
ARTICLE 7
BOARDS OF DIRECTORS
Section 7.1 Reorganization of Boards. The parties covenant and
agree, within two days of the execution of this Agreement, to cause the
Boards to consist of up to five (5) directors, identical in make-up, to
consist of two (2) nominees proposed by MFC and up to three (3) nominees
proposed by current management, at the election of current management,
provided that each such current management nominee must be acceptable to
MFC, upon reasonable notice, and MFC must have indicated its approval, in
writing, to Euro and Euro Trade prior to the election thereof. The
parties agree that the first MFC nominees to the Boards shall be Michael
Smith and James Carter and that MFC consents to two of the first
management nominees to the Boards being John Vowell and Naren Desai. If
any vacancy occurs on either of the Boards, including as a result of the
failure on the part of current management to provide a fifth nominee, such
vacancy shall be filled forthwith by the appointment of a nominee proposed
by the Person who proposed the nominee whose retirement or removal caused
such vacancy, provided that: (i) any future nominee of then current
management of Euro to the Boards must first be approved by MFC; and (ii)
if approved once in accordance herewith, no management nominee need be re-
approved to fill any such vacancy. Euro acknowledges and agrees that a
failure to maintain the Boards in accordance with the terms of this
Agreement shall be deemed to be a material default hereunder.
ARTICLE 8
INDEMNITY AND LIMITATION
Section 8.1 Euro Indemnity. Euro covenants and agrees to protect,
indemnify and hold harmless MFC and the officers, directors, employees,
representatives, agents and advisors of MFC to the fullest extent lawful,
from and against any and all losses, liabilities, claims, damages and
expenses whatsoever (including but not limited to reasonable attorneys'
fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any investigation or litigation, commenced
or threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation) joint or several, to which they or
any of them may become subject, under or pursuant to any securities laws
or otherwise resulting or arising from the provision of the Administrative
Services or the Management Services hereunder, howsoever incurred,
including, without limitation, any such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) that arise out of or
are based upon any agreement entered into or representation made by MFC on
behalf of Euro or any untrue statement or alleged untrue statement of a
material fact contained in any information in
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connection with any securities regulatory filing, or that arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading.
Section 8.2 Limitation. Notwithstanding any other provision
hereof, MFC will not be liable to Euro in respect of any loss, liability,
claim, damage, or expense arising hereunder or in relation to any of the
Services or any other related matter other than claims arising out of bad
faith or willful misconduct on the part of MFC or its agents or employees,
any such claim not to exceed the aggregate Administration Fees and
Management Fees (less expenses incurred by MFC) actually paid to and
received by MFC pursuant to Article 2 hereof.
ARTICLE 9
TERM OF AGREEMENT
Section 9.1 Term. The term of this Agreement shall commence on the
Effective Date and, subject to Section 9.2 hereof, shall continue for a
minimum of three years provided that such term shall renew automatically
for two additional years on the second anniversary of the Effective Date
and on each successive anniversary thereafter such that the outstanding
term of this Agreement shall upon each anniversary date of the Effective
Date have a remaining term of two years.
Section 9.2 Termination. (1) MFC may terminate this Agreement
at any time upon providing Euro with one year's written notice thereof.
(2) In each year, commencing in 2002, in the event that the Net
Asset Value calculated as at December 31 of the immediately preceding
calendar year is more than 25% below the Initial Asset Value, Euro may
terminate this Agreement upon 30 days' written notice provided that such
termination has been approved by a resolution of the Board, excluding the
MFC nominees.
(3) Either party hereto may, at its sole option, terminate this
Agreement upon an Event of Bankruptcy occurring in respect of the other
party hereto.
Section 9.3 Option to Survive Termination. Notwithstanding the
termination of this Agreement in accordance with this Article 9, the
Option shall remain in full force and effect in accordance with the terms
hereof.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Notice. (1) Any notice or other instrument
required or permitted to be given hereunder shall be in writing and may be
given by delivery in person, by prepaid registered mail or facsimile:
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(a) in the case of Euro, to: Euro Trade & Forfaiting, Inc.
9 King Street, Third Floor
London, EC2V8EA, England
Attention: President
Facsimile No.: 44 171 726 2749
(b) in the case of MFC, to: MFC Bancorp Ltd.
6 Rue Charles-Bonnet
1206 Geneva, Switzerland
Attention: President
Facsimile No.: 41 22 818 2998
provided that if any interruption in the postal service of the
jurisdiction of the party giving or receiving any notice is in effect or
known to be pending, any such notice or direction as aforesaid shall be
given by personal delivery, or facsimile.
(2) Any notice or other instrument, if personally delivered as
aforesaid, shall be deemed to have been given on the date of delivery, if
given by facsimile as aforesaid, shall be deemed to have been given on the
date of transmission, and if mailed as aforesaid, shall be deemed to have
been delivered on the fifth business day following the day on which it was
mailed.
(3) Either party may change its address for service from time to
time by notice given in accordance with the foregoing.
Section 10.2 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of Switzerland and shall be
treated in all respects as a Swiss contract without giving effect to
applicable principles of conflicts of law to the extent that the
application of the laws of another jurisdiction would be required thereby.
Section 10.3 Consent to Jurisdiction. Euro hereby irrevocably
submits to the non-exclusive jurisdiction of any Swiss court sitting in
Geneva, in any action or proceeding arising out of or relating to this
Agreement and hereby irrevocably agrees that all claims in respect of any
such action or proceeding may be heard and determined in such Swiss court.
Euro agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. The parties agree that
any such action or proceeding shall be conducted in the English language.
Section 10.4 Successors and Assigns. This Agreement shall become
effective when it is executed by the parties and thereafter shall be
binding upon and enure to the benefit of Euro and its successors and
permitted assigns and of MFC and its successors and permitted assigns.
Neither party shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the other, which
consent may be arbitrarily withheld.
Section 10.5 Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be
held invalid or unenforceable in whole or
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in part in any jurisdiction, such provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining
provisions hereof in any jurisdiction.
Section 10.6 Prior Understandings. This Agreement supersedes all
prior understandings and agreements, whether written or oral, and
constitutes the entire agreement between the parties hereto relating to
the transactions provided for herein.
Section 10.7 Further Assurances. Each party agrees that it will
execute all documents and do all acts and things as the other party may
reasonably request and as may be lawful and within its respective power to
do, to carry out and/or implement the provisions or intent of this
Agreement.
Section 10.8 Counterparts and Facsimile. This Agreement may be
executed in counterparts and by facsimile and by different parties in
separate counterparts, each of which when so executed shall be deemed an
original and all of which, taken together, shall constitute one and the
same instrument.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of
the day and year first above written.
EURO TRADE & FORFAITING, INC.
By:
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Name:
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Title:
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MFC BANCORP LTD.
By:
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Name:
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Title:
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SCHEDULE "A"
No. Warrants
* *
VOID AFTER: 5:00 p.m., Geneva Time
On *
Warrant Certificate
THIS CERTIFIES THAT for value received the registered holder hereof or
registered assigns (the "Holder"), is the owner of the number of Warrants
set forth above, each of which entitles the Holder to purchase at any time
from * a.m. Geneva time, on *, until 5:00 p.m., Geneva time, on *, one
fully-paid and non-assessable common share (the "Common Shares") in the
capital of Euro Trade & Forfaiting, Inc., a Utah corporation (the
"Corporation"), at a purchase price of $* per Common Share (the "Warrant
Price").
The Warrants shall be registered initially in the name of, or as directed
by, MFC Bancorp Ltd. ("MFC") in such denominations as MFC may request in
writing to the Corporation.
Each Warrant certificate may be exchanged for another certificate or
certificates entitling the Holder to purchase a like aggregate number of
Common Shares as the certificate or certificates surrendered then entitle
each Holder to purchase. Any Holder desiring to exchange a Warrant
certificate or certificates shall make such request in writing delivered
to the Corporation, and shall surrender, properly endorsed, the
certificate or certificates to be so exchanged. Thereupon, the
Corporation shall execute and deliver to the person entitled thereto a new
Warrant certificate or certificates, as the case may be, as so requested.
The Warrants shall be transferable upon delivery thereof duly endorsed by
the Holder or by his duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment or authority to
transfer. Upon any transfer, the Corporation shall deliver a new Warrant
or Warrants to the persons entitled thereto.
The Holder shall have the right to purchase from the Corporation (and the
Corporation shall issue and sell to such Holder) one fully-paid and non-
assessable Common Share for each Warrant held, upon surrender to the
Corporation, or its duly authorized agent, of such Warrant, with the
purchase form on the reverse thereof duly completed and executed, and upon
payment to the Corporation of the Warrant Price for the number of Common
Shares in respect of which such Warrants are then exercised. Payment of
such Warrant Price may be made by certified or official bank cheque
payable to the order of the Corporation.
Upon such surrender of Warrants, and payment of the Warrant Price as
aforesaid, the Corporation shall transfer and cause to be delivered
forthwith to or upon the written order of the Holder thereof and in such
name or names as such Holder may designate, a certificate or certificates
for the number of Common Shares so purchased upon the exercise of such
Warrants.
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The rights of purchase represented by the Warrants shall be exercisable,
at the election of the Holder thereof, either in full or, from time to
time, in part and, in the event that any Warrants are exercised in respect
of less than all of the Common Shares purchasable on such exercise at any
time prior to the date of expiration of the Warrants, a new certificate
evidencing the remaining Warrant or Warrants will be issued.
The Corporation represents, warrants and covenants that any and all Common
Shares issued and sold to a Holder upon each Warrant exercise shall be:
(i) duly and validly created and issued by the Corporation; (ii) fully-
paid and non-assessable; (iii) validly outstanding; and (iv) free and
clear of all liens, charges and encumbrances whatsoever.
In case any of the Warrants shall be mutilated, lost, stolen or destroyed,
the Corporation may issue and deliver in exchange and substitution for and
upon cancellation of the mutilated Warrant, or in lieu of and in
substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and representing an equivalent right or interest.
Upon the occurrence of one or more events involving a capital
reorganization, reclassification, subdivision or consolidation of the
Common Shares, or of the merger, amalgamation or other corporate
combination of the Corporation with one or more other entities or of any
other event in which new securities of any nature are delivered in
exchange for Common Shares and such Common Shares are cancelled, or of the
Corporation paying a dividend or making a distribution in Common Shares to
its shareholders (each of which is referred to herein as a "Fundamental
Change"), if any Warrant exercise takes place after any such Fundamental
Change, the Corporation shall transfer and deliver such number of Common
Shares or new securities to the Holder exercising the Warrant as would
have been delivered if such Warrant exercise had occurred prior to the
occurrence of such Fundamental Change.
Any notice or other instrument or payment required or permitted to be
given hereunder to the Corporation may be given by delivery in person, by
prepaid registered mail or by facsimile to the Corporation at 9 King
Street, Third Floor, London, EC2V8EA, England, Attention: President,
Facsimile No.: 44 171 726 2749, provided that all payments required to be
made upon a Warrant exercise shall be made by delivery in person or
prepaid registered mail.
IN WITNESS WHEREOF, the Corporation has duly executed this Certificate.
DATED: *.
EURO TRADE & FORFAITING, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
16
PURCHASE FORM
(To be executed upon exercise of Warrant)
To: Euro Trade & Forfaiting, Inc.
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to
purchase thereunder, * Common Shares, as provided for therein, and tenders
herewith payment of the purchase price in full in the form of a certified
or official bank cheque in the amount of * per share.
Please issue a certificate or certificates for such Common Shares in the
name of, and pay any cash for any fractional share to:
*
DATED: *.
- --------------------------------------------
Name
(Please print name and address)
- --------------------------------------------
Signature
NOTE: The above signature
should correspond exactly
with the name on the face
of this Warrant Certificate
or with the name of the
assignee appearing in the
assignment form below.
And, if such number of shares shall not be all the shares purchasable
under the within Warrant Certificate, a new Warrant Certificate is to be
issued in such name for the balance remaining of the shares purchasable
thereunder.
17
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, the undersigned hereby sells, assigns and transfer
unto * the within Warrant Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint the *
or * of the Corporation or *, attorney, to transfer said Warrant
Certificate on the Books of the within-named Corporation, with full power
of substitution in the premises.
DATED: *.
- ---------------------------------------------
Signature
NOTE: The above signature
should correspond exactly
with the name on the face
of this Warrant Certificate.
18
SCHEDULE "B"
THIS AGREEMENT dated for reference the 31st day of January, 2000
AMONG:
MFC BANCORP LTD., a corporation organized under the laws
of the Yukon Territory, Canada, having an office at 6 Rue
Charles-Bonnet, 1206 Geneva, Switzerland
AND:
NORTH CASCADE LIMITED, a corporation organized under
the laws of the British Virgin Islands, having an office at 9
King Street, Third Floor, London, EC2V8EA, England
AND:
COLLINGWOOD INVESTMENTS LIMITED, a corporation
organized under the laws of the Bahamas, having an office at 9
King Street, Third Floor, London, EC2V8EA, England
WHEREAS:
A. Euro has agreed to enter into a Services Agreement with MFC pursuant
to which MFC shall provide certain administrative and management
services to Euro; and
B. The Shareholders own 11,000,000 common shares of Euro and wish for
MFC to enter into the Services Agreement with Euro; and
C. It is a condition to MFC providing the services contemplated under
the Services Agreement to Euro that the Shareholders enter into this
Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
respective agreements herein set forth, and for other good and valuable
consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto acknowledge, declare, covenant and agree
as follows:
ARTICLE 1
INTERPRETATION
Section 1.1 Definitions. When used in this Agreement (including
the recitals and any schedules hereto) or in any amendment hereto, the
following terms shall, unless otherwise expressly provided, have the
following meanings, respectively:
"Agreement" means this agreement, as supplemented, amended or otherwise
modified, extended, renewed or replaced from time to time and the
expressions "Article" and "Section" followed by a number mean, and refer
to the specified Article or Section of this Agreement;
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2
"Business Day" means any day on which MFC is open for business in Geneva,
Switzerland;
"Cascade" means North Cascade Limited, a corporation organized under the
laws of the British Virgin Islands;
"Collingwood" means Collingwood Investments Limited, a corporation
organized under the laws of the Bahamas;
"Euro" means Euro Trade & Forfaiting, Inc., a corporation organized under
the laws of the State of Utah, U.S.A.;
"Loan Agreement" means a loan agreement between the Shareholders and MFC
Merchant Bank S.A. dated for reference January 31, 2000;
"MFC" means MFC Bancorp Ltd., a corporation organized under the laws of
the Yukon Territory, Canada;
"Services Agreement" means an administration and management services
agreement between MFC and Euro dated for reference January 31, 2000, as
same may be supplemented, amended or otherwise modified, extended, renewed
or replaced from time to time;
"Shareholders" means, collectively, North Cascade and Collingwood and
"Shareholder" means any one of them;
"Shareholder's Interest" means all and not less than all the right, title
and interest of a Shareholder in and to any of the Shares or any right or
interest deriving therefrom; and
"Shares" means 6,600,000 common shares of Euro and 4,400,000 common shares
of Euro held by Cascade and Collingwood respectively, as legal and
beneficial owners thereof.
Section 1.2 Headings, etc. The division of this Agreement into
Articles and Sections and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of
this Agreement.
Section 1.3 Gender and Number. Words imparting the singular number
include the plural and vice-versa and words imparting gender include the
masculine, feminine and gender neutral as the context requires.
Section 1.4 Amendment. No amendment of any provision of this
Agreement shall be effective unless the same is in writing and signed by
each party hereto.
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ARTICLE 2
RESTRICTIONS ON TRANSFER OF SHARES OF EURO
Section 2.1 No Dealing with Shares. The Shareholders covenant that
they will not sell, assign, donate, encumber, transfer, mortgage, pledge,
charge, subject to a security interest, hypothecate, or otherwise dispose
of or in any way whatsoever directly or indirectly, deal with the
ownership of any of the Shares, except in accordance with the terms of
this Agreement and except in respect of a pledge of the Shares in favour
of MFC Merchant Bank, S.A. as contemplated by the Loan Agreement, as same
may be amended or replaced from time to time.
ARTICLE 3
RIGHT OF FIRST REFUSAL
Section 3.1 Notice of Proposed Sale. If any Shareholder
(hereinafter in this Article referred to as the "Offeror") receives a bona
fide written offer (hereinafter in this Article referred to as the
"Offer") from any person, firm or corporation dealing at arm's length with
the Offeror to purchase all or any part of the Shareholder's Interest
beneficially owned by such Shareholder, which is acceptable to the
Shareholder, such Shareholder shall give notice of such Offer (hereinafter
in this Article referred to as the "Notice") to MFC and/or its assigns and
shall set out in the Notice the number of Shares to be sold pursuant to
the Offer (hereinafter in this Article referred to as the "Offered
Interest") and the terms upon which and the price at which (hereinafter in
this Article referred to as the "Purchase Price"), such Offered Interest
will be sold pursuant to the Offer.
Section 3.2 Right to Purchase Offered Interest. Upon the Notice
being given, MFC and/or its assigns (hereinafter in this Article sometimes
collectively referred to as the "Offerees" and sometimes individually
referred to as an "Offeree") shall have the right to purchase all, but not
less than all, of the Offered Interest for the Purchase Price. The
Offerees shall be entitled to purchase the Offered Interest pro rata based
upon their respective interests herein, as designated by MFC. Notice by
MFC to any Shareholder of the respective interests held by MFC and its
assigns shall be deemed conclusive.
Section 3.3 Notice of Purchase and Additional Purchases. Within
ten (10) Business Days of having been given the Notice, each Offeree
desiring to purchase all of the Offered Interest that he is entitled to
purchase in accordance with the provisions of Section 3.2 shall give
notice to the Offeror, to Euro and to the other Offerees. If any Offeree
does not give such notice, the Offered Interest that he has been entitled
to purchase (hereinafter in this Section 3.3 referred to as the "Rejected
Interest") may instead be purchased by the Offerees who did give such
notice, pro rata based upon their respective interests herein as
designated by MFC in accordance with Section 3.2 or in such other
proportion as such Offerees may agree in writing, and, within five (5)
Business Days of the expiry of the ten (10) Business Day period specified
in this Section 3.3, each Offeree who desires to purchase all of the
Rejected Interest that he is entitled to purchase in accordance with the
provisions of this Section 3.3 shall give an additional notice to the
Offeror, to Euro and to the other Offerees. If any Offeree entitled to
give the said additional notice does not do so, the Rejected Interest that
he had been entitled to purchase may instead be
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purchased by the Offerees who did give such notice, and so on from time to
time until the Offerees are willing to purchase all of the Offered
Interest or until they are not willing to purchase any more. If the
Offerees are willing to purchase all, but not less than all, of the
Offered Interest, the transaction of purchase and sale shall be completed
in accordance with the terms set out in the Notice.
Section 3.4 Sale to Third Party. If the Offerees do not give
notice in accordance with the provisions of Section 3.3 that they are
willing to purchase all of the Offered Interest, the rights of the
Offerees, subject as hereinafter provided, to purchase the Offered
Interest shall forthwith cease and determine and the Offeror may sell the
Offered Interest to the third party purchaser within forty-five (45) days
after the date of the Notice for a price not less than the Purchase Price
and on other terms no more favourable to such person than those set forth
in the Notice.
ARTICLE 4
SUPPORT OBLIGATIONS
Section 4.1 Shareholders' Support Covenant. The Shareholders
hereby jointly and severally covenant and agree, forthwith and from time
to time, to execute all documents and do all acts and things as may be
necessary or desirable in order to assist, authorize, direct and cause
Euro to fully carry out and implement the provisions and intent of the
Services Agreement, including, without limiting the generality of the
foregoing, to:
(i) fulfil the Shareholders' obligations under this Agreement and
such amendments hereto as MFC and Euro may, from time to time,
request;
(ii) exercise all voting rights attached to the Shares in favour of
the appointment of directors of Euro, from time to time, as
contemplated by Article 7 of the Services Agreement; and
(iii) refrain from taking any action or exercising any voting rights
attached to the Shares in any manner detrimental to MFC or
MFC's interests under the Services Agreement or that could,
directly or indirectly, adversely impact or frustrate the
implementation or intent of the Services Agreement.
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5
ARTICLE 5
MISCELLANEOUS
Section 5.1 Termination. This Agreement shall be automatically
terminated on the 30th day following the termination of the Services
Agreement.
Section 5.2 Notice. (1) Any notice or other instrument required
or permitted to be given hereunder shall be in writing and may be given by
delivery in person, by prepaid registered mail or facsimile:
(ai) in the case of Cascade, to: 9 King Street, Third Floor
London, EC2V8EA, England
Attention: President
Facsimile No.: 44 171 726 2749
(bii) in the case of Collingwood, to: 9 King Street, Third Floor
London, EC2V8EA, England
Attention: President
Facsimile No.: 44 171 726 2749
(ciii) in the case of MFC, to: 6 Rue Charles-Bonnet
1206 Geneva, Switzerland
Attention: President
Facsimile No.: 41 22 818 2998
provided that if any interruption in the postal service of the
jurisdiction of the party giving or receiving any notice is in effect or
known to be pending, any such notice or direction as aforesaid shall be
given by personal delivery, or facsimile.
(4) Any notice or other instrument, if personally delivered as
aforesaid, shall be deemed to have been given on the date of delivery, if
given by facsimile as aforesaid, shall be deemed to have been given on the
date of transmission, and if mailed as aforesaid, shall be deemed to have
been delivered on the fifth business day following the day on which it was
mailed.
(5) Any party may change its address for service from time to time
by notice given in accordance with the foregoing.
Section 5.3 Joint and Several Obligations. The obligations of the
Shareholders under this Agreement shall be joint and several.
Section 5.4 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of Switzerland and shall be
treated in all respects as a Swiss contract without giving effect to
applicable principles of conflicts of law to the extent that the
application of the laws of another jurisdiction would be required thereby.
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Section 5.5 Consent to Jurisdiction. The parties hereby
irrevocably submit to the non-exclusive jurisdiction of any Swiss court
sitting in Geneva, in any action or proceeding arising out of or relating
to this Agreement and hereby irrevocably agrees that all claims in respect
of any such action or proceeding may be heard and determined in such Swiss
court. The parties agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. The
parties agree that any such action or proceeding shall be conducted in the
English language.
Section 5.6 Successors and Assigns. This Agreement shall become
effective when it is executed by the parties and thereafter shall be
binding upon and enure to the benefit of the parties and its successors
and permitted assigns. No party shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
others, which consent may be arbitrarily withheld.
Section 5.7 Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be
held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction
or the remaining provisions hereof in any jurisdiction.
Section 5.8 Prior Understandings. This Agreement supersedes all
prior understandings and agreements, whether written or oral, and
constitutes the entire agreement between the parties hereto relating to
the transactions provided for herein.
Section 5.9 Further Assurances. Each party agrees that it will
execute all documents and do all acts and things as the other party may
reasonably request and as may be lawful and within its respective power to
do, to carry out and/or implement the provisions or intent of this
Agreement.
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Section 5.10 Counterparts and Facsimile. This Agreement may be
executed in counterparts and by facsimile and by different parties in
separate counterparts, each of which when so executed shall be deemed an
original and all of which, taken together, shall constitute one and the
same instrument.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of
the day and year first above written.
MFC BANCORP LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
NORTH CASCADE LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
COLLINGWOOD INVESTMENTS LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------