EXHIBIT 4.23
BOARD REPRESENTATION AGREEMENT
BETWEEN
BID.COM INTERNATIONAL INC.
A COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF ONTARIO, CANADA
HEREUNDER REFERRED TO AS BII
AND
LIME ROCK, PEDERSEN AND THE OTHER SHAREHOLDERS,
AS IDENTIFIED BELOW
WHEREAS
H. BII and ADB have entered into an agreement dated September 7, 2001
whereby BII has agreed to submit an offer to the shareholders of ADB
relating to the purchase of all of the shares, warrants and options in
ADB (the "Offer");
I. The Offer is subject to the approval of the shareholders of BII, such
approval to be sought at a special meeting of shareholders presently
scheduled for October 10, 2001 (the "Special Meeting")
J. In the event the Offer is successful, the shareholders of ADB as a group
will hold approximately 30% of the shares of BII post-acquisition;
K. As a result of the significant holdings of Lime Rock Partners LLC ("LIME
ROCK"), Jan Edvin Pedersen ("PEDERSEN") and Sandnes Investering,
Rogaland Investering, AIG Private Bank Ltd. and Karstein Gjersvik
(together the "OTHER SHAREHOLDERS") in BII post-acquisition, they have
requested that they be entitled to nominate individuals to the board of
directors of BII, for inclusion in a slate of directors to be put before
the shareholders of BII at the Special Meeting and at the Annual General
Meeting of shareholders;
NOW, THEREFORE, BII, LIME ROCK, PEDERSEN AND THE OTHER SHAREHOLDERS HAVE AGREED
AS FOLLOWS:
PART A - NOMINATIONS
A.1. Subject to the terms and conditions contained herein, Management and the
Board of Directors of BII agree to include nominees of LIME ROCK and
PEDERSEN in the slate of directors for the Special Meeting, for
appointment following the Special Meeting, upon successful completion of
the Offer.
A.2 The nominees of each party shall be as follows:
LIME ROCK - John Reynolds
PEDERSEN - Martin Bekkeheien
Each nominee must, prior to his or her nomination, provide a detailed
five year biography for inclusion in public disclosure materials and
execute all required consents and disclosure documents required pursuant
to regulatory and exchange requirements. In the event that either
nominee cannot participate in a meeting of the Board of Directors of BII
during their term as directors, Pontus Wilfors (for John Reynolds) or
Jone Skaara (for Martin Bekkeheien) shall be entitled to observer status
at such meeting entitling such person to notice of such meeting, to be
copied with all materials in respect of such meeting, and to attend such
meeting. Such observer rights shall be subject to the Board of
Directors' right to in camera sessions as and when determined by the
Board.
A.3 No more than once each twelve months (on a rolling basis), LIME ROCK
shall be entitled to replace their nominee (either prior to election to
the Board of Directors of BII or following election) on no less than ten
business days prior written notice to the Chairman and Secretary of the
Board of Directors, and the Board of Directors shall as promptly as
practical act to elect such new nominee in the stead of the resigning
nominee. LIME ROCK understand and agree that new nominees to the Board
of Directors may be required to satisfy applicable Canadian residency or
other regulatory requirements to be eligible for appointment.
A.4 PEDERSEN agrees that he shall not be entitled to nominate any individual
other than Martin Bekkeheien, until the next Annual General Meeting of
the shareholders of BII or such time as Mr. Bekkeheien indicates he no
longer wishes to serve on the Board of Directors of BII, whatever comes
first. At such time, PEDERSEN shall be entitled to nominate himself or
another person on the same basis as described above. Prior to such time
as PEDERSEN becomes a member of the Board of Directors of BII, PEDERSEN
shall be entitled to observer status at all BII Board of Directors
meetings, entitling him to notice of all such meetings, to be copied
with all materials in respect of such meetings, and to attend such
meetings. Such observer rights shall be subject to the Board of
Directors' right to in camera sessions as and when determined by the
Board.
A.5 In addition, at the next Annual General Meeting of the shareholders of
BII, the OTHER SHAREHOLDERS shall be entitled to a nominee to the Board
of Directors of BII. The OTHER SHAREHOLDERS understand and agree that
such new nominee to the Board of
Directors may be required to satisfy applicable Canadian residency or
other regulatory requirements to be eligible for appointment. BII shall
be entitled to rely on a statement in writing from Oddvar Fosse as to
the identity of the nominee.
A.6 The Board of Directors and management of BII agree that the rights of
nomination herein shall apply for the periods set out below:
LIME ROCK - until such time as LIME ROCK and other entities controlled
by LIME ROCK should hold less than 2.5% of the outstanding shares of
BII;
PEDERSEN - until such time as PEDERSEN and other entities controlled by
PEDERSEN should hold less than 2.5% of the outstanding shares of BII.
OTHER SHAREHOLDERS - until such time as the OTHER SHAREHOLDERS as a
group and other entities controlled by the OTHER SHAREHOLDERS should
hold less than 50% of the shares of BII which they receive pursuant to
the Offer, provided that any OTHER SHAREHOLDER which individually holds
less than 50% of the shares of BII which they receive pursuant to the
Offer shall no longer be entitled to participate in such nomination
process.
A.6 LIMEROCK, PEDERSEN and the OTHER SHAREHOLDERS hereby understand and
agree that the rights of nomination herein do not guarantee election of
such nominees, and that the Board of Directors and management of BII do
not hold sufficient shares to ensure such elections.
A.7 In addition to the Board positions contemplated above, each nominee who
is elected or appointed to the Board hereunder shall be entitled to hold
a seat on a Committee, subject to Canadian residency requirements and
any applicable independence or member expertise requirements. BII agrees
that it shall use its best efforts to ensure that LIME ROCK's nominee
holds a seat on the Management Resource and Compensation Committee or
the Audit Committee of the Board, and at a minimum has observer status
(on the same terms as described above) with respect to the Audit
Committee of the Board; and that PEDERSEN's nominee holds a seat on the
Corporate Governance Committee of the Board, for so long as Martin
Bekkeheien is such nominee.
PART B - MISCELLANEOUS
B.1 No public announcement concerning this agreement shall be made by a
party hereto without the consent of the others or except as may be
required by law.
B.2 This agreement shall not be assignable by any party hereto.
B.3 This agreement will be binding upon, enure to the benefit of and be
enforceable by the parties and their respective successors and permitted
assigns.
B.4 All notices and other communications provided for or permitted hereunder
shall be made by hand delivery or by fax as follows:
(a) if to BII, at:
6725 Airport Road, Suite 201
Mississauga Ontario
CANADA, L4V 1V2
Attention: Corporate Secretary
Fax No: (905) 672-7514
(b) if to LIME ROCK, at:
Lime Rock Management LP
518 Riverside Avenue
Westport CT 06880, USA
Attention: John T. Reynolds
Fax No: +1 (203) 293 2760
(c) if to PEDERSEN, at:
ADB Systemer ASA
Vingv. 2
4050 Sola, Norway
Attention: Jan Edvin Pedersen
Fax No: +47 51 64 71 40
(d) if to the OTHER SHAREHOLDERS, at
Sandnes Investering ASA
Folkvordv. 11
4318 Sandnes
Attention: Oddvar Fosse
Fax No: +47 51 68 69 82
or to such other address or person as either party may specify by notice
in writing to the other. All such notices or communications shall be
deemed to have been duly given or made:
(i) when delivered by hand, or
(ii) if sent by fax, when receipt is acknowledged.
B.5 This agreement is governed by Ontario law. The courts of Ontario shall
serve as the legal venue of any possible disputes.
This agreement is entered into in 3 - three - originals, one to each party.
7 September, 2001
BID.COM INTERNATIONAL INC LIME ROCK PARTNERS LLC
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Jeff Lymburner John Reynolds
President & CEO Principal
SANDNES INVESTERING
- ------------------------ ------------------------
JAN EDVIN PEDERSEN Name:
Title:
ROGALAND INVESTERING AIG PRIVATE BANK LTD.
- ------------------------ ------------------------
Name: Name:
Title: Title:
- ------------------------
KARSTEIN GJERSVIK