EXHIBIT 99.2
[EXECUTION COPY]
GERMAN SHARE PURCHASE AND TRANSFER AGREEMENT
This GERMAN SHARE PURCHASE AND TRANSFER AGREEMENT (this "Agreement"),
dated as of April 11, 2003, is made and entered into by and between Parker
Hannifin Holding GmbH, a German corporation ("Buyer"), and MTS Systems
Corporation, a Minnesota corporation ("Seller").
WHEREAS, Seller is the sole shareholder of MTS Systems Holdings for
Europe GmbH, a German corporation (the "Company") and beneficially owns all of
the outstanding shares of the Company (the "Shares");
WHEREAS, the Company is the limited partner of MTS Automation GmbH &
Co. KG, a German partnership (the "Operating Partnership") which operates
Seller's automation division's business in Europe (the "Business") by
manufacturing and selling the products listed on Schedule 1 consisting of motors
and drive amplifiers and controllers intended for motors (the "Products");
WHEREAS, MTS Automation Verwaltungs GmbH (the "Subsidiary") is a
wholly-owned subsidiary of the Operating Partnership and the general partner of
the Operating Partnership;
WHEREAS, as of an even date herewith, Seller and Xxxxxx-Xxxxxxxx
Corporation, an Ohio corporation and the ultimate parent corporation of Buyer
(the "Xxxxxx") have entered into an Asset Purchase Agreement (the "Asset
Purchase Agreement"; copy attached hereto as Exhibit A) pursuant to which Xxxxxx
is purchasing Seller's North American automation division business primarily
conducted by Seller in New Ulm, Minnesota; and
WHEREAS, Xxxxxx desires to purchase from Seller, and Seller desires to
sell to Xxxxxx and its subsidiaries, all of Seller's automation division
business and to that effect, Seller and Buyer are now entering into this
Agreement whereby Seller will sell, and Buyer will purchase, all of the Shares,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements and the conditions set forth in this
Agreement, Buyer and Seller hereby agree as follows:
ARTICLE 1
TRANSFER OF SHARES; PURCHASE PRICE
1.01. Purchase and Sale. Subject to the terms and conditions herein set
forth,
Seller agrees to sell, transfer and convey to Buyer, and Buyer agrees that it
will purchase from Seller, on the Closing Date, the Shares.
1.02 Purchase Price. The total purchase price for the Shares (the
"Purchase Price") shall be determined as set forth in Section 2.01 of the Asset
Purchase Agreement.
1.03 Allocation of Purchase Price. Prior to Closing, the parties shall
use their best efforts to enter into an agreement allocating the Purchase Price
for tax and accounting purposes. The parties agree that such allocation shall
not reflect amounts for "Buildings & Improvements" described in the Closing
Balance Sheet (as defined in Section 5.06(iii)) or the tax credit described in
the second sentence of footnote (5) of the same.
ARTICLE 2
CLOSING AND KNOWLEDGE
2.01 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of Robins, Kaplan,
Xxxxxx & Xxxxxx L.L.P., Minneapolis, Minnesota at such date and time (referred
to herein as the "Closing Date") as is no later than one business day after the
receipt of the Cartel Approval (as hereinafter defined) or at such other place
and such other time as may be mutually agreed, and the Closing shall be deemed
effective as of 11:59 P.M. German Time on the Closing Date.
2.02 General Procedure. At the Closing, each party shall deliver to the
party entitled to receipt thereof such documents, instruments and materials (or
complete and accurate copies thereof, where appropriate) as may be reasonably
required in order to effectuate the intent and provisions of this Agreement,
including the Share Transfer Agreement attached as Exhibit B hereto.
2.03 Knowledge. As used in this agreement, the term "Knowledge" means
the actual knowledge after reasonable investigation of a party's executive
officers and managing directors, as applicable, and with respect to Seller, also
of Xxxxxxx Xxxxxxx and the person identified in the applicable section of this
Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that, except as set
forth in the schedules hereto:
3.01 Incorporation and Corporate Power. Seller is a corporation duly
incorporated and validly existing under the laws of the State of Minnesota, USA.
The Operating Partnership is a limited partnership validly existing, and the
Company and the
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Subsidiary are limited liability companies duly incorporated and validly
existing, under the laws of Germany. The Operating Partnership, the Company and
the Subsidiary are herein also referred to individually as a "German Entity" and
collectively, the "German Entities." Seller and each of the German Entities have
all requisite corporate power and authority and all material authorizations,
licenses, permits and certifications necessary to carry on the Business as now
being conducted and to own, lease and operate their respective assets.
Seller is the sole shareholder of the Company, a German limited
liability company registered with the local court of Berlin-Charlottenburg under
HRB 62141. The share capital of the Company amounts to DEM 7,550,000 (one share
in the nominal value of DEM 50,000 and one share in the nominal value of DEM
7,500,000) and has been fully paid up.
The Operating Partnership is a German limited partnership registered
with the local court of Freiburg x.Xx. under HRA 4369. The Company is KG's only
limited partner and the Subsidiary is its only general partner.
The Operating Partnership is the sole shareholder of the Subsidiary, a
German limited liability company registered with the local court of Freiburg
x.Xx. under HRB 5431. The share capital of the Subsidiary amounts to DEM 50,000
(one share in the nominal value of DEM 50,000) and has been fully paid up.
Seller is the owner of the Shares and is free to dispose of them at
will, in particular without requiring the consent of third parties. Neither the
Shares nor the shares in the Subsidiary or the partnership interests in the
Operating Partnership are encumbered with any third party rights.
With respect to the German Entities, there exist no control agreements,
profit and loss transfer agreements or other inter-company agreements as defined
in sec 291 et seq. of the Stock Corporation Act.
3.02 Execution, Delivery; Valid and Binding Agreement. The execution,
delivery and performance of this Agreement by Seller and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
required corporate action of Seller and no other proceedings on its part are
necessary to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed and delivered by Seller and,
assuming that this Agreement is the valid and binding agreement of Buyer,
constitutes the valid and binding obligation of Seller, enforceable in
accordance with its terms.
3.03 Authority; No Breach. Seller has the requisite corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. Except as would not have a material adverse effect on the
transactions contemplated hereby and assuming the receipt of the consents listed
on Schedule 3.04, the execution, delivery and performance of this Agreement by
Seller and the
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consummation of the transactions contemplated hereby do not conflict with or
result in any breach of any of the provisions of, or constitute a default under,
result in a violation of, result in the creation of a right of termination or
acceleration or any lien, security interest, charge or authorization, consent,
approval, exemption or other action by or notice to any court or other
governmental body, under the provisions of the Articles of Incorporation or
Bylaws of Seller or any indenture, mortgage, lease, loan agreement or other
agreement or instrument by which Seller or any of the German Entities are bound
or affected, or any law, statute, rule or regulation or order, judgment or
decree to which Seller or any of the German Entities are subject. There is no
lawsuit, proceeding or investigation pending or, to the Knowledge of Seller,
threatened against Seller or any German Entity which might prevent the
consummation of any of the transactions contemplated by this Agreement. The
Knowledge of Xxxx Xxxxxxxx applies to this section.
3.04 Consents. No material consent, approval or authorization of any
governmental or regulatory authority or any other party or person is required to
be obtained by Seller or any German Entity in connection with its execution,
delivery and performance of this Agreement or the transactions contemplated
hereby (including without limitation assignment of the Contracts) except as set
forth in Schedule 3.04. The Knowledge of Xxxx Xxxxxxxx applies to this section.
3.05 Title to Properties.
(a) Neither Seller nor any of the German Entities owns any real
property. Schedule 3.05(a) sets forth the real property leases (the "Leases")
for the real property primarily used or occupied by the German Entities (each, a
"German Facility" and collectively, the "German Facilities"). Each German
Facility has access, sufficient for the conduct of the Business as now
conducted, to public roads and to all utilities, including electricity, sanitary
and storm sewer, potable water, natural gas and other utilities, used in the
operation of the Business at that location.
(b) Each Lease is in full force and effect. Seller has made available
to Buyer a complete and accurate copy of each Lease. No German Entity is in
material default, and no circumstances exist which, if unremedied, would, either
with or without notice or the passage of time or both, result in such default
under the Lease; nor, to the Knowledge of Seller, is the other party to the
Lease in default.
(c) The German Entities own good and marketable title to each and all
of their assets, free and clear of all liens, claims and encumbrances (the
"Encumbrances"), except as set forth in Schedule 3.05(c) and except for
workmans' or landlords' encumbrances or similar encumbrances arising under law
and except for customary retention of title rights. The assets of the German
Entities as currently constituted represent, in all material respects,
substantially all of the assets which have been necessary for the German
Entities to operate the Business prior to the Closing.
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(d) All machinery, tools, warehouse equipment, computers, fixtures,
office equipment, testing equipment (including all related spare parts,
accessories and supplies) and other similar equipment owned by the German
Entities and used in the Business are listed on Schedule 3.05(d) (the
"Equipment"). The Equipment is in good working condition, normal wear and tear
excepted and is fit for its particular use or purpose in the Business. The
Equipment represent, in all material respects, substantially all of the
Equipment which have been necessary for Seller to operate the Business prior to
the Closing.
(e) Seller has no Knowledge of improvements made or contemplated to be
made by any public or private authority, the costs of which are to be assessed
as special taxes or charges against any German Facility, and there are no
present assessments.
3.06 Tax Matters. For purposes of this Agreement, the term "Taxes"
means all taxes, charges, fees, levies, or other assessments, including, without
limitation, all net income, gross income, gross receipts, sales, use, ad
valorem, transfer, franchise, profits, license, withholding, payroll,
employment, social security, unemployment, excise, estimated, severance, stamp,
occupation, property, or other taxes, customs duties, fees, assessments, or
charges of any kind whatsoever, including, without limitation, all interest and
penalties thereon, and additions to tax or additional amounts imposed by any
taxing authority, domestic or foreign, upon any German Entity. As of the Closing
Date, in connection with, or relating to, the operation of the Business and any
of the German Entities:
(a) All material Tax returns required to be filed with any governmental
authority with respect to any Tax period prior to the Closing Date by or on
behalf of Seller have been or will be, to the extent required to be filed on or
before the date hereof, filed when due, including extensions, in accordance with
all Applicable Laws;
(b) All such Tax returns are, or will be at the time of filing, true,
complete, and accurate in all material respects;
(c) All material Taxes shown as due and payable on the Tax assessments
(Steuerbescheide) that have been filed have been timely paid, or withheld and
remitted to the appropriate governmental authority;
(d) There exist no delinquencies in the payment of any material Tax;
(e) There has not been granted any extension or waiver of the statute
of limitations period applicable to any Tax return, which period (after giving
effect to such extension or waiver) has not yet expired;
(f) There is no material claim, audit, action, suit, or proceeding now
pending or, to Seller's Knowledge, threatened against or with respect of any Tax
or Tax return;
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(g) No German Entity has entered into any agreement or arrangement with
any governmental authority with regard to the Tax liability of the relevant
German Entity;
(h) There is no lien or encumbrance on any of the assets of the German
Entities that arose in connection with the failure (or alleged failure) to pay
any Tax, except for inchoate liens for Taxes not yet due and payable; and
(j) Each German Entity has withheld and paid all material Taxes
required to have been withheld and paid in connection with amounts paid or owing
to any employee, independent contractor, creditor, shareholder, or other third
party.
3.07 Contracts.
(a) Each German Entity has performed in all material respects all
obligations required to be performed by it on or before the date hereof in
connection with all contracts that the relevant German Entity is a party to and
is not in receipt of any claim of default under any such contract. Seller has no
Knowledge of any breach or anticipated breach by any other party to any such
contract. Prior to the date of this Agreement, Seller has made available to
Buyer a true and correct copy of each contract listed on Schedule 3.07(a),
together with all amendments, waivers or other changes thereto. The Knowledge of
Xxxx Xxxxxxxx applies to this section.
(b) There does not exist any agreement, contract or commitment (whether
oral or written) regarding the sale of any goods or services by the Business
except for the contracts listed on Schedule 3.07(b). All such contracts are
valid, binding and in full force and effect.
3.08 Litigation. Schedule 3.08 hereto contains a complete and correct
list of all judgments, decrees, suits, actions, claims, proceedings or
investigations pending, or to the Knowledge of Seller, threatened against any
German Entity or involving any of the German Entities, the Business or any
Products or services made, used or sold in the conduct of the Business within
the last twelve (12) months including with limitation all claims based upon any
theory of tort (including but not limited to product liability) or contract
(including but not limited to product or service warranty), other than claims
involving amounts not in excess of $10,000. There are no actions, suits,
proceedings, orders or investigations pending or, to the Knowledge of Seller,
threatened against any German Entity, at law or in equity, or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which would have a
material adverse effect on Seller's performance under this Agreement or the
consummation of the transactions contemplated under this Agreement. The
Knowledge of Xxxx Xxxxxxxx applies to this section.
3.09 Compliance with Laws; Permits. Except as set forth in Schedule
3.09, each German Entity has complied in all material respects with all
applicable laws, regulations and other requirements, including, but not limited
to, federal, state, local and
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foreign laws, ordinances, rules, regulations and other requirements pertaining
to product labeling, consumer products safety, employee benefits, equal
employment opportunity, employee retirement, affirmative action and other hiring
practices, occupational safety and health, workers' compensation, unemployment
and building and zoning codes, which affect the Business or the German
Facilities and to which the German Entities may be subject (hereinafter,
"Applicable Laws"), and no written claims have been filed against the German
Entities alleging a violation of any such laws, regulations or other
requirements.
3.10 Environmental Matters.
(a) Each German Entity, with respect to the Business and the German
Facilities, has been and currently is in material compliance with all applicable
Environmental Laws. Except as would not have a material adverse effect on the
Business, there has been no Release of Hazardous Materials or other violation of
Environmental Laws or any costs arising under or violation of Environmental Laws
with respect to the Business or the German Facilities. No material expenditure
will be required in order for Buyer to comply with any Environmental Laws in
effect at the time of the Closing in connection with the operation or continued
operation of the Business or the German Facilities in a manner consistent with
the current operation thereof by the German Entities.
(b) No German Entity has, during its use of the German Facility,
disposed of any Hazardous Materials in violation of Environmental Laws.
(c) As used in this Section 3.10, the following terms shall have the
following meanings:
(i) "Hazardous Materials" means any dangerous, toxic or
hazardous pollutant, contaminant, chemical, waste, material or
substance as defined in or governed by any federal, state or local law,
statute, code, ordinance, regulation, rule or other requirement
relating to such substance or otherwise relating to the environment or
human health or safety, including without limitation any waste,
material, substance, pollutant or contaminant that might cause any
injury to human health or safety or to the environment or might subject
a German Entity to any imposition of costs or liability under any
Environmental Law.
(ii) "Environmental Laws" means all applicable federal, state,
local and foreign laws, rules, regulations, codes, ordinances, orders,
decrees, directives, permits, licenses and judgments relating to
pollution, contamination or protection of the environment (including,
without limitation, all applicable federal, state, local and foreign
laws, rules, regulations, codes, ordinances, orders, decrees,
directives, permits, licenses and judgments relating to Hazardous
Materials in effect as of the date of this Agreement).
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(iii) "Release" shall mean the spilling, leaking, disposing,
discharging, emitting, depositing, ejecting, leaching, escaping or any
other release or threatened release, however defined, whether
intentional or unintentional, of any Hazardous Material.
3.11 Warranty and Other Claims. Except to the extent of claims in
amounts up to the warranty reserve at September 30, 2002, reflected on the 2002
Financial Statements (as defined in Section 3.15 (a)) (the "Warranty Reserve"),
to the Knowledge of Seller, all Products manufactured or sold by the Business
have in all material respects been in conformity with all Applicable Laws,
contractual commitments and all express and implied warranties. Except for
warranty service provided in the ordinary course of business and claims in
amounts up to the Warranty Reserve, there are no existing claims against the
German Entities, or to Seller's Knowledge any threatened claims, for Products
manufactured or sold by the Business which are defective or fail to meet any
express product warranties, contract or industry standards, or standards set
forth in Applicable Laws. Seller has provided the Buyer with copies of (i) all
product labels, catalogs, brochures, instruction manuals or other promotional
material describing the Products of the Business, and (ii) the current standard
terms and conditions of purchase and sale (including all product warranties).
The Knowledge of Xxxx Xxxxxxxx applies to this section.
3.12 Brokerage. Except for Xxxxxx Xxxxxxx & Xxxxxx LLC, whose fee shall
be the obligation of Seller, no third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of Seller
or any of the German Entities.
3.13 Corporate Records; Business Records. None of the records, systems,
controls, data or information which are material to the operation of the
Business (the "Business Records") are recorded, stored, maintained, operated or
otherwise wholly or partly dependent upon or held by any means (including any
electronic, mechanical or photographic process, whether or not computerized)
which (including all means of access thereto and therefrom) are not under the
exclusive ownership and direct control of the German Entities, except to the
extent dependent on the availability of utilities such as electricity, phone or
data communications access provided by third parties. The Business Records are
complete and accurate in all material respects and none of the Business Records
material to the current operation of the Business have been destroyed.
3.14 Intellectual Property.
(a) Seller has made available to Buyer correct and complete copies of
all patents and trademarks and all registrations and applications relating
thereto owned by the German Entities, as well as all licenses and similar
agreements (as amended to date), all as listed on Schedule 3.14 (the
"Intellectual Property"), and has made
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available to Buyer correct and complete copies of all other written
documentation evidencing ownership and prosecution (if applicable) of each such
item. Except as set forth on Schedule 3.14, with respect to each item of
Intellectual Property owned by the German Entities: (i) a German Entity
possesses all right, title and interest, free of any mortgage, lien or pledge,
in and to the item, or has the rights to use such item pursuant to valid and
enforceable license agreements, free and clear of Encumbrances, (ii) the item is
not subject to any outstanding injunction, judgment, order, decree, ruling, or
charge, (iii) no proceeding is pending or, to the Knowledge of Seller,
threatened which challenges the legality, validity, enforceability, use or
ownership of the item and (iv) other than routine indemnities given to
distributors, sales representatives, dealers and customers, no German Entity has
any current obligations to indemnify any Person for or against any interference,
infringement, misappropriation, or other conflict with respect to the item. The
Intellectual Property, together with the related know-how, trade secrets and
engineering records, constitutes all intellectual property necessary or required
to conduct the Business by Buyer as of the Closing Date. The Knowledge of Xxxx
Xxxxxxxx applies to this section.
(b) Each item of Intellectual Property owned or used by the German
Entities immediately prior to the Closing Date will be owned or available for
use by Buyer on substantially similar terms and conditions immediately
subsequent to the Closing Date subject only to the receipt of the consents set
forth on Schedule 3.04, and the German Entities have taken reasonable commercial
actions to maintain and protect each item of Intellectual Property material to
the Business.
(c) To the Knowledge of Seller, no German Entity has in connection with
the Business interfered with, infringed upon, misappropriated or otherwise come
into conflict with any intellectual property rights of third parties, and no
German Entity has received any written charge, complaint, claim, demand or
notice alleging any such interference, infringement, misappropriation or
violation (including any claim that a German Entity must license or refrain from
using any intellectual property rights of any third party) which has not been
resolved. To the Knowledge of Seller, no third party has interfered with,
infringed upon, misappropriated or otherwise come into conflict with any of the
intellectual property. During the last 5 years, no German Entity has, with
respect to the Intellectual Property, received any opinion of counsel concerning
the validity or infringement of any proprietary property of any third party.
(d) Schedule 3.14 specifically identifies each material license,
sublicense or agreement pursuant to which any German Entity uses intellectual
property in the Business that any third party owns. Seller has made available to
Buyer correct and complete copies of all such licenses, sublicenses and other
agreements (as amended to date). With respect to each such license, sublicense
or agreement required to be identified in Schedule 3.14 (and assuming the
receipt of required consents, if any): (i) the license, sublicense or other
agreement is enforceable, (ii) to the Knowledge of Seller, following the
Closing, the license, sublicense or other agreement will continue to be
enforceable on substantially similar terms and conditions, (iii) neither a
German Entity, nor to the Knowledge of Seller, any other party to the license,
sublicense or other
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agreement is in material breach or default thereof, and no event has occurred
which, with notice or lapse of time, would constitute a breach or default or
permit early termination, modification or acceleration thereunder, (iv) no other
party to the license, sublicense or other agreement has repudiated any provision
thereof, (v) to the Knowledge of Seller, the underlying item of intellectual
property is not subject to any outstanding injunction, judgment, order, decree,
ruling or charge, (vi) to the Knowledge of Seller, no proceeding is pending or
threatened which challenges the legality, validity or enforceability of the
underlying item of intellectual property, and (vii) no German Entity has granted
any sublicense or similar right with respect to the license, sublicense or other
agreement except for non-exclusive licenses granted in the ordinary course of
business.
(e) Since September 30, 2002, except as set forth in this Agreement or
the contracts, leases or other documents listed in any schedule hereto, no
German Entity has, in the conduct of the Business, sold, assigned or granted
rights under any patent, trade name, trademark or copyright, or any application
therefor, or any trade secrets or designs or other proprietary property for any
Products manufactured or sold or services provided by the Business.
3.15 Financial Information.
(a) Attached as Schedule 3.15 are the unaudited balance sheets and
unaudited statements of net income for each of the German Entities for the
twelve months ended September 30, 2002 (the "2002 Financial Statements"). The
2002 Financial Statements (A) have been prepared in accordance with the
provisions of the German Commercial Code regarding year-end accounts and the
generally accepted accounting principles applicable thereto ("GAAP"), (B) are
complete and correct in all material respects as of the date hereof and (C)
except as indicated therein, reflect all claims against and all debts and
liabilities of the German Entities and their operations, fixed or contingent, as
at the respective dates thereof which would be required to be reflected or
disclosed in financial statements prepared in accordance with GAAP, and the
statements of income, included therein fairly present in all material respects
the results of operations of the German Entities for the periods indicated.
(b) All accounts receivable of the German Entities as of a recent date
prior to the date hereof are listed on Schedule 3.15(b) (the "Accounts
Receivable") and were actually made in the ordinary course of business and,
assuming that Buyer will use its commercially reasonable efforts to continue the
collection of such Accounts Receivable, will be good and collectible in full in
the ordinary course of business, net of reserves and allowances provided for in
the 2002 Financial Statements, as such reserves and allowances have been updated
through the date of the Schedule in accordance with past practices. The Accounts
Receivable are not subject to any defense, counterclaim, or set-off, net of such
reserves and allowances.
(c) (i) The amounts shown for inventory on the September 30, 2002
balance sheets (the "Balance Sheets") reflect, and the amounts to be shown for
the inventory of
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the German Entities on the Closing Date will reflect, valuations at the lower of
cost or market, and are not and will not be in excess of the values of such
inventory computed in accordance with GAAP applied on a consistent basis, with
adequate provision for obsolescence, shrinkage, excess or slow-moving
quantities, defective materials and deterioration in all material respects. The
value of inventory shown on the 2002 Financial Statements is true and correct in
all material respects as of the dates indicated therein; (ii) each German Entity
has good and marketable title to all of its inventory free and clear of all
Encumbrances; (iii) none of the inventory is on consignment; and (iv) the
inventory net of any reserves set forth on the 2002 Financial Statements for
excess and obsolete inventory consists of inventories of good and merchantable
quality and of the kind and quality regularly and currently used in the Business
and usable or saleable in the ordinary course of business. Schedule 3.15(c)
contains a true and complete list of the inventory of the Business as of the
date hereof.
3.16 Employee Benefits.
(a) Benefit Plans. Seller has made available to Buyer true, complete
and correct copies of each (i) employee benefit plan to which a German Entity
has an obligation to make contributions with respect to Employees, or for which
a German Entity has any liability for Employees ("Benefit Plans"); (ii) material
bonus or other incentive compensation, deferred compensation, salary
continuation during any absence from active employment for disability or other
reasons, severance, sick days, stock award, stock option, stock purchase,
tuition assistance, vacation pay or other employee benefit agreements, policies
or arrangements (other than Benefit Plans or Individual Arrangements), primarily
related to the Business or for which a German Entity has any liability for
Employees ("Employee Arrangements"); and (ii) individual employment, severance,
termination, bonus or other compensation arrangements or agreements with respect
to Employees to which a German Entity is a party or for which a German Entity
has any liabilities (the "Individual Arrangements").
Each Benefit Plan, Employee Arrangement and Individual Arrangement has been
administered in accordance with its terms in all material respects, and each
Benefit Plan, Employee Arrangement and Individual Arrangement complies, and has
been administered in accordance with, any Applicable Laws in all material
respects, except in each case where the failure so to administer or comply,
individually or in the aggregate, would not have a material adverse effect. No
lawsuits, complaints, investigations or proceedings (other than routine claims
for benefits) to or by any person or governmental authority have been filed or,
to the Knowledge of Seller, are proposed or threatened with respect to any
Benefit Plan, Employee Arrangement or Individual Arrangement.
3.17 Labor Matters. Seller has made available to Buyer a complete and
correct list of each current employee who is employed by a German Entity (the
"Employees"). There has not been during the last five (5) years, nor is there
currently pending or, to Seller's Knowledge, threatened, any activity by
employees of a German Entity or by any trade union relating to the
representation of such employees by any trade union nor has there been any
strike, work stoppage or labor troubles involving the employees of a
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German Entity during the last five (5) years. The Knowledge of Xxxx Xxxxxxxx
applies to this section.
3.18 Insurance. Seller has made available to Buyer a complete and
accurate list of all current policies or binders of insurance (showing as to
each policy or binder the carrier, policy number, coverage limits, expiration
dates, annual premiums, deductibles and a general description of the type of
coverage provided and policy exclusions) maintained by a German Entity and
relating to the Business and its personnel. All of the Insurance is "occurrence"
based insurance. The insurance is in full force and effect and sufficient for
compliance in all material respects with all requirements of applicable law and
of all contracts to which a German Entity is a party. No German Entity is in
material default under any of the insurance.
3.19 Absence of Certain Payments. No German Entity nor any of their
representatives, nor any other person or entity acting on behalf of any of them,
has with respect to the Business (a) engaged in any activity prohibited by the
United States Foreign Corrupt Practices Act of 1977 or any other similar law,
regulation or decree, directive or order of any governmental authority or (b)
without limiting the generality of the preceding clause, used any corporate or
other funds for unlawful contributions, payments, gifts or entertainment, or
made any unlawful expenditures relating to political activity to officials of
any governmental authority.
3.20 Customers.
(a) Schedule 3.20 lists the top 10 customers of the Business for the
year ended September 30, 2002. No customer of the Business has given a German
Entity written notice of termination or intent to terminate a material portion
of its business with such German Entity and Seller is not aware of any customers
of the Business that, within the past one (1) year, have threatened to terminate
a material portion of their business with a German Entity.
(b) The work substantially completed by a German Entity prior to the
Closing Date which will require either customer or third party approval or
acceptance but which has not yet received the required customer or third party
approval of acceptance will meet all material requirements and specifications of
the Contract under which such work was completed, as modified through the
Closing Date in all material respects.
3.21 Actions Since September 30, 2002. Since September 30, 2002, except
as set forth in or contemplated by Schedule 3.21, this Agreement or the
contracts, leases or documents listed in any other Schedule hereto, no German
Entity has:
(a) Incurred any obligation or liability or entered into any
transaction, in each case other than in the ordinary course of business;
12
(b) Satisfied and discharged any lien, or paid any obligation or
liability other than current liabilities included in the Balance Sheet or notes
thereto and current liabilities incurred since that date in the ordinary course
of business;
(c) Made any general wage or salary increase or any increase in
compensation payable or to become payable to any officers or employees, or
entered into any employment contract with any officer or employee, except for
increases made in the ordinary course of business consistent with past
practices;
(d) Mortgaged, pledged, charged or subjected to lien or other
encumbrance any of its property;
(e) Sold or transferred any of its assets or prepaid or cancelled any
debts or claims, except in each case in the ordinary course of business;
(f) Sold, assigned or granted rights under any Intellectual Property;
(g) Knowingly waived any rights of material value;
(h) Acquired any other business or entered into any licensing
arrangement or joint venture;
(i) Become involved or threatened with any labor dispute that has had
or could have a material adverse effect on its business or its financial
condition;
(j) Suffered any unusual loss not in the ordinary course of business;
(k) Suffered any damage or destruction, whether or not covered by
insurance, materially and adversely affecting the business of a German Entity or
its properties; or
(l) Experienced any other event or condition of any character which is,
or with the lapse of time or occurrence of such event or condition would be,
adverse to the financial condition, business, assets, properties or operations
of the business of a German Entity.
3.22 True, Complete and Correct Documents. All documents provided to
the Buyer by Seller are true, complete and correct copies of the documents they
purport to represent.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller that:
4.01 Incorporation and Corporate Power. Buyer is a corporation duly
incorporated and validly existing under the laws of Germany, with the requisite
13
corporate power and authority to enter into this Agreement and perform its
obligations hereunder.
4.02 Execution, Delivery; Valid and Binding Agreement. The execution,
delivery and performance of this Agreement by Buyer and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
relevant corporate action of Buyer and no other corporate proceedings on its
part are necessary to authorize the execution, delivery or performance of this
Agreement. This Agreement has been duly executed and delivered by Buyer and
constitutes, assuming that the Agreement is the valid and binding agreement of
Seller, the valid and binding obligation of Buyer, enforceable in accordance
with its terms.
4.03 No Breach. Buyer has the requisite corporate power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
Except as would not have a material adverse effect on the transactions
contemplated hereby, the execution, delivery and performance of this Agreement
by Buyer and the consummation of the transactions contemplated hereby do not
conflict with or result in any breach of any of the provisions of, or constitute
a default under, result in a violation of, result in the creation of a right of
termination or acceleration or any lien, security interest, charge or
authorization, consent, approval, exemption or other action by or notice to any
court or other governmental body, under the provisions of the Articles of
Incorporation or Bylaws of Buyer or any indenture, mortgage, lease, loan
agreement or other agreement or instrument by which Buyer is bound or affected,
or any law, statute, rule or regulation or order, judgment or decree to which
Buyer is subject.
4.04 Consents. No material consent, approval or authorization of any
governmental or regulatory authority or any other party or person is required to
be obtained by Buyer in connection with its execution, delivery and performance
of this Agreement or the transactions contemplated hereby.
4.05 Litigation. There are no actions, suits, proceedings, orders or
investigations pending or, to the Knowledge of Buyer, threatened against Buyer,
at law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which would have a material adverse effect on Buyer's
performance under this Agreement or the consummation of the transactions
contemplated under this Agreement.
4.06 Brokerage. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of Buyer.
ARTICLE 5
COVENANTS
14
5.01 Covenants of German Entities. From the Date hereof until the
Closing Date:
(a) Each German Entity will conduct the Business only in the usual and
ordinary course of business as heretofore conducted, including, without
limitation, paying all payables in the ordinary course (subject to good faith
disputes);
(b) Each German Entity will use reasonable efforts to retain its
employees in the Business;
(c) No German Entity will, without consent of Buyer, directly or
indirectly, (i) sell, pledge, dispose of or encumber any of its assets, except
sales of inventory or finished Products in the ordinary course of business; or
(ii) enter into or propose to enter into, or modify or propose to modify, any of
its material agreements, arrangements or understandings, except in each case in
the ordinary course of business consistent with past practices. Each German
Entity will maintain and keep its assets and the German Facilities in as good
repair, working order and condition as at present, except for depreciation due
to ordinary wear and tear and damage due to casualty;
(d) Each German Entity will (i) use commercially reasonable efforts to
preserve intact the Business and goodwill thereof and maintain satisfactory
relationships with suppliers, distributors, customers and others having business
relationships with the Business; and (ii) confer on a regular and frequent basis
with representatives of Buyer to report operational matters and the general
status of ongoing operations of the Business;
(e) Each German Entity will afford to Buyer and its authorized
representatives (the "Buyer's Representatives") full access at all reasonable
times and upon reasonable notice to the offices, properties, books, records,
officers, employees and other items of the Business and otherwise provide such
assistance as is reasonably requested by Buyer in order that Buyer may have a
full opportunity to make such investigation and evaluation as it shall
reasonably desire to make of the Business and affairs of the Business. In
addition, each German Entity will cooperate fully (including providing
introductions where necessary) with Buyer to enable Buyer to contact such third
parties, including major customers, prospective customers, governmental
agencies, vendors or suppliers of the Business, as Buyer deems reasonably
necessary;
(f) Seller and each German Entity will use its best efforts to cause
the consummation of the transactions contemplated by this Agreement in
accordance with the terms and conditions hereof and applicable law;
(g) Seller will promptly inform Buyer in writing of any variances from
the representations and warranties contained in Article 3 hereof;
(h) No German Entity will, without the consent of Buyer, (a) increase
any salaries of or award any bonus to any Employees, except in connection with
regularly
15
scheduled annual salary reviews or bonus determination dates, (b) discount any
Accounts Receivable, or (c) change its methods of accounting for the Business;
(i) Each German Entity will perform in all material respects
obligations to be performed under its contracts; and
(j) Each German Entity will use its best efforts to obtain all of the
consents required under this Agreement. However, this Agreement will not
constitute an agreement to assign or transfer any interest in any instrument,
contract, lease, permit or other agreement or arrangement of any German Entity
or any claim, right or benefit arising thereunder or resulting therefrom, if an
assignment or transfer without the consent of a third party would constitute a
breach or violation thereof or adversely affect the rights of Buyer, Seller or
any German Entity. If a consent of a third party that is required under any
instrument, contract, lease, permit, or other agreement or arrangement or any
claim, right, or benefit arising thereunder or resulting therefrom, is not
obtained prior to the Closing, or if an attempted assignment would be
ineffective or would adversely affect any interest of Buyer, Seller or any
German Entity, Seller will at its own expense cooperate with Buyer to obtain
such consent within three (3) months of the Closing, or in any other reasonable
arrangement to provide that Buyer will receive the interest of Seller in the
benefits under any such instrument, contract, lease, permit, or other agreement
or arrangement and that Buyer will undertake Seller's obligations thereunder.
5.02 Nonsolicitation of Employees; Resignations. During the twelve (12)
month period commencing on the Closing Date, other than Xxxxxx Ongyert and
Xxxxxxx Xxxxxxx, Seller agrees not to hire any individuals who were employees of
or assigned to the Business on or during the six-month period preceding the
Closing Date without Buyer's prior written consent. With effect of the Closing
Date, Messrs. Ongyert's and Xxxxxxx'x position as managing directors of the
Company and of the Subsidiary, respectively, shall be revoked, and they shall be
granted discharge (ENTLASTUNG) for the time until the Closing Date, all at no
cost to Buyer or to the relevant German Entity (except for notarial and
registration fees).
5.03 Buyer's Covenants. From the date hereof until the Closing Date:
(a) Buyer will use its best efforts to cause the consummation of the
transactions contemplated by this Agreement in accordance with the terms and
conditions hereof and applicable law; and
(b) Buyer will promptly inform Seller in writing of any variances from
the representation and warranties contained in Article 4 hereof.
5.04 Additional Covenants.
16
(a) Transition Assistance. From the date hereof until ninety (90) days
after the Closing Date, each party will use commercially reasonable efforts,
upon the request of the other party, to aid each other in the transition of the
Business to Buyer.
(b) Intercompany Accounts; Cash; Letters of Comfort.
(i) Seller agrees to settle and pay, forgive or otherwise
eliminate or transfer all inter-company accounts between any of the
German Entities on the one hand, Seller or any other entities
affiliated to it on the other hand prior to Closing, including without
limitation, indebtedness to Seller and to other affiliates of Seller
for money borrowed. Seller shall be entitled to receive all cash at
hand of the Business prior to the Closing.
(ii) Prior to Closing, Seller shall cause the Declaration of
Patronage, dated March 21, 2002, and the Declaration of Patronage,
dated March 21, 2002 (the "Letters of Comfort") to be revoked and
original copies of such Letters of Comfort returned to Seller. Buyer
shall assume all liability for and shall indemnify and hold harmless
Seller from and against any and all claims, costs or liabilities,
asserted against, resulting to, imposed upon, or incurred or suffered
by Seller, directly or indirectly, as a result of or arising from the
reliance by a third party on such Letters of Comfort save where Seller
is obligated to indemnify Buyer or the German Entities against such
claim, cost or liability pursuant to this Agreement.
5.05 Environmental Liabilities. Seller shall retain all liability for
and shall indemnify and hold harmless Buyer from and against any and all claims,
costs or liabilities, asserted against, resulting to, imposed upon, or incurred
or suffered by Buyer, directly or indirectly, as a result of or arising from a
Release or presence of any circumstances or facts causing or relating to
Hazardous Materials in soils, surface water or groundwater in, on or under the
real property related to the Business, violation of or noncompliance with
Environmental Laws, or otherwise resulting from the operation of the Business,
prior to the Closing Date. Buyer shall retain all liability for and shall
indemnify and hold harmless Seller from and against any and all claims, costs or
liabilities, asserted against, resulting to, imposed upon, or incurred or
suffered by Seller, directly or indirectly, as a result of or arising from a
Release or presence (provided that such presence did not exist prior to the
Closing Date) of any circumstances or facts causing or relating to Hazardous
Materials in soils, surface water or groundwater in, on or under the real
property related to the Business, violation of or noncompliance with
Environmental Laws, or otherwise resulting from the operation of the Business,
after the Closing Date.
5.06 Other Liabilities and Indemnities. Seller shall assume all
liability for and shall indemnify and hold harmless Buyer from and against any
and all claims, costs or liabilities, asserted against, resulting to, imposed
upon, or incurred or suffered by Buyer, directly or indirectly, as a result of
the following:
(i) Payroll of Employees of the Business up to and ending on
the Closing Date.
17
(ii) Product liability claims for Products manufactured or
sold by Seller prior to the Closing Date.
(iii) Any and all of the following liabilities as reflected on
the balance sheet of the German Entities in the form attached hereto as
Schedule 5.06 as of the Closing Date (the "Closing Balance Sheet"): (A)
accrued severance costs for employees of the Business released prior to
Closing, (B) accrued commissions for sales occurring prior to Closing,
(C) accrued municipal trade taxes and trade income taxes and other
income taxes, and (D) management expenses owed to Seller, management
bonuses, VAT and year-end audit fees (each of the foregoing liabilities
and the current amount thereof is identified on Schedule 5.06 in the
column entitled "Transaction Adjustments" with the corresponding
narrative descriptions contained in footnotes (3) through (6), and are
collectively referred to herein as the "Closing Adjustments"). Promptly
following the Closing, Seller will prepare the Closing Balance Sheet
and will promptly provide the same as well as remit payment in an
amount equal to (1) the aggregate amount of the Closing Adjustments
reflected on the Closing Balance Sheet, less (2) the Offsets (as
defined below) reflected on the Closing Balance Sheet. "Offsets" shall
mean the following assets of the Business, as reflected in the Closing
Balance Sheet: (Y) prepaid rent and prepaid software licenses, and (Z)
loans to employees (each of the foregoing is identified on Schedule
5.06 in the column entitled "Transaction Adjustments" with the
corresponding narrative descriptions contained in footnotes (1) and
(2)). If Buyer disputes the amounts set forth in the Closing Balance
Sheet, the parties shall promptly submit such dispute to an independent
accounting firm that has not been retained by either party during the
last two years for resolution within thirty (30) days. Nothing set
forth in this Section 5.06(iii) shall be deemed to waive, limit or
restrict Buyer's right to indemnification pursuant to Section 8.02
herein (with no application of caps or baskets) for any breach of the
covenant contained in Section 5.01(a) herein, to affect or modify the
procedure for purchase price allocation described in Section 1.03
herein, or to affect or modify the covenant in Section 5.01(a) to
conduct the Business only in the usual and ordinary course of business.
(iv) Liability vis-a-vis Xx. Xxxxx-Xxxxxx Xxxxx arising from
the Purchase Agreement dated December 3, 1996.
(v) Tax liabilities of the German Entities whenever arising
insofar as they relate to the period prior to the Closing Date and
insofar as not covered in the Closing Balance Sheet pursuant to Clause
5.06 (iii) (C).
5.07 Insurance. Between the date hereof and the Closing, Buyer shall
procure insurance for the Business, it being understood that the current
insurance policies for the Business are held by the Company and will not be
transferred to Buyer and that
18
Buyer shall be solely responsible for the procurement of all necessary insurance
policies.
5.08 MTS Name. Buyer shall cause each of the German Entities to
promptly after Closing, but in any event within 30 days after Closing, to
resolve and to file a name change to eliminate the word "MTS" from the names of
each German Entity. Upon each such filing, each German Entity shall commence
using the new name instead of, or if required by Applicable Laws together with,
the old name. In no event shall any German Entity represent to any third party
after the Closing that it is doing business or manufactures products on behalf
of, or as, Seller or that it has authority to bind Seller.
ARTICLE 6
CONDITIONS TO CLOSING
6.01 Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the transaction contemplated by this Agreement is subject to
satisfaction of any of the following conditions on or before the Closing Date
(subsections 6.01(a)-(d) collectively referred to as the "Cartel Approval"):
(a) the German Federal Cartel Office (BUNDESKARTELLAMT) has not
notified the notifying Parties in writing that the preconditions for prohibition
of the acquisition under sec 36 para 1 of the German Act Against Restraints of
Competition (GESETZ GEGEN WETTBEWERBSBESCHRANKUNGEN, "GWB") are not met;
(b) no notice from the German Federal Cartel Office under sec 40 para 1
sentence 1 GWB has been received within one month after receipt of the complete
notification of the acquisition project at the German Federal Cartel Office;
(c) the German Federal Cartel Office, after a notice under sec 40 para
1 sentence 1 GWB, approves the acquisition under sec 40 para 2 sentence 1 GWB;
or
(d) the German Federal Cartel Office, after a notice under sec 40 para
1 sentence 1 GWB, does not prohibit the acquisition within four months (sec 40
para 2 GWB) after receipt of the complete notification of the acquisition
project at the German Federal Cartel Office or within a period renewed under sec
40 para 2 sentence 3 no 1 GWB (sec 40 para 2 sentence 2 GWB).
6.02 Conditions to Seller's Obligations. The obligations of Seller to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction of any of the following conditions on or before the Closing Date
(subsections 6.02(a)-(d) collectively referred to as the "Cartel Approval"):
(a) the German Federal Cartel Office (BUNDESKARTELLAMT) has not
notified the notifying Parties in writing that the preconditions for prohibition
of the acquisition under sec 36 para 1 of the German Act Against Restraints of
Competition (GESETZ GEGEN WETTBEWERBSBESCHRANKUNGEN, "GWB") are not met;
19
(b) no notice from the German Federal Cartel Office under sec 40 para 1
sentence 1 GWB has been received within one month after receipt of the complete
notification of the acquisition project at the German Federal Cartel Office;
(c) the German Federal Cartel Office, after a notice under sec 40 para
1 sentence 1 GWB, approves the acquisition under sec 40 para 2 sentence 1 GWB;
or
(d) the German Federal Cartel Office, after a notice under sec 40 para
1 sentence 1 GWB, does not prohibit the acquisition within four months (sec 40
para 2 GWB) after receipt of the complete notification of the acquisition
project at the German Federal Cartel Office or within a period renewed under sec
40 para 2 sentence 3 no 1 GWB (sec 40 para 2 sentence 2 GWB).
ARTICLE 7
TERMINATION
7.01 Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) By the mutual consent of Buyer and Seller;
(b) By Seller, if the Cartel Approval has not been received within 90
days of the date hereof; or
(c) By either Buyer or Seller, if the Closing has not occurred on or
prior to April 11, 2004.
7.02 Effect of Termination. In the event of termination of this
Agreement by either Buyer or Seller as provided in Section 7.01, this Agreement
shall become void and there shall be no liability on the part of either Buyer or
Seller, except with respect to breaches of this Agreement prior to the time of
such termination.
ARTICLE 8
SURVIVAL; INDEMNIFICATION
8.01 Survival of Representations, Warranties and Covenants. The
representations and warranties contained in Article 3 and Article 4 hereof shall
survive, without regard to any investigation of the parties, for eighteen (18)
months from the closing under the Asset Purchase Agreement (the "Asset Closing
Date"), provided, however, that the (a) representations and warranties set forth
in Sections 3.01, 3.02, 3.03, 3.05(c), 4.01, 4.02 and 4.03 shall survive in
perpetuity (b) the representations and warranties set forth in Section 3.06
(Taxes) shall survive the Closing until thirty (30) days after the expiration of
all applicable statutes of limitation, as extended, shall have expired and (c)
the representations and warranties set forth in Section 3.10
20
(Environmental) shall survive the Closing for a period of ten (10) years after
the Asset Closing Date.
8.02 Indemnification. Indemnification rights of the parties hereto
shall be governed by, and subject to the limitations of, Article 9 of the Asset
Purchase Agreement. Buyer's indemnification rights shall be exercised solely by
Xxxxxx on Buyer's behalf.
8.03 Remedies. The enforcement of the agreements of indemnification
contained in this Article 8 shall be, after the date hereof, the exclusive
remedy of the parties hereto for any breach of any covenant, representation or
warranty hereof or any certificate delivered pursuant to this Agreement, whether
sounding in tort, contract or otherwise, and the parties hereto waive all
remedies otherwise available to such parties save only remedies which by law may
not be waived.
ARTICLE 9
MISCELLANEOUS
9.01 Expenses. Each party hereto will pay all of its own expenses
(including attorneys' and accountants' fees) in connection with the negotiation
of this Agreement, the performance of their respective obligations hereunder and
the consummation of the transactions contemplated by this Agreement, whether
consummated or not.
9.02 Cooperation and Exchange of Information. Buyer and Seller shall
cooperate, shall take further action and shall execute and deliver such further
documents as may be reasonably requested by the other party in order to carry
out the provisions of this Agreement. Buyer and Seller shall also provide each
other with such cooperation and information as either of them reasonably may
request of the other in filing any Tax return, amended return or claim for
refund, determining a liability for Taxes or a right to a refund of Taxes or in
conducting any audit or proceeding in respect of Taxes relating to any of the
German Entities . Such cooperation and information shall include providing
copies of relevant Tax returns or portions thereof, together with accompanying
schedules and related work papers and documents relating to rulings or other
determinations by Taxing authorities. Each party shall make its employees
available on a mutually convenient basis to provide explanation of any documents
or information provided hereunder. Seller upon written request by Buyer, will
provide to Buyer such factual information reasonably necessary for filing Tax
returns, Tax planning and contesting any Tax audit that Seller possesses as
Buyer may reasonably request with respect to the Assets (which information
Seller agrees to maintain and preserve for so long as it may be needed by
Buyer).
9.03 Announcements. Buyer and Seller shall cooperate and mutually agree
upon any press release or public announcements prior to the Closing concerning
the transactions contemplated by this Agreement; provided, however, that Buyer
and Seller may communicate with analysts, institutional investors or similar
individuals with regard to the substance of any items disclosed in any press
release mutually agreed upon by
21
the parties; and, provided further that, nothing contained herein shall prevent
Buyer or Seller, after giving reasonable advance notice to the other party
hereto, from making any announcement reasonably determined by it, upon advice of
counsel, to be required by law.
9.04 Amendment and Waiver. This Agreement may not be amended or waived
except in a writing executed by the party against which such amendment or waiver
is sought to be enforced. No course of dealing between or among any persons
having any interest in this Agreement will be deemed effective to modify or
amend any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
9.05 Notices. All notices, demands and other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when personally delivered or three
business days after being mailed by first class mail, return receipt requested,
or when receipt is acknowledged, if sent by facsimile, telecopy or other
electronic transmission device. Notices, demands and communications to Buyer and
Seller will, unless another address is specified in writing, be sent to the
address indicated below:
Notices to Buyer:
-----------------
With a copy to:
---------------
c/o Xxxxxx-Xxxxxxxx Corporation Xxxxxx-Xxxxxxxx Corporation
0000 Xxxxxxxx Xxxx. 0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attention: Automation Group Controller Attn: General Counsel
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Notices to Seller:
------------------
With a copy to:
---------------
MTS Systems Corporation Robins, Kaplan, Xxxxxx & Xxxxxx L.L.P.
00000 Xxxxxxxxxx Xxxxx 0000 XxXxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000 000 XxXxxxx Xxxxxx
Attention: CEO Xxxxxxxxxxx, XX 00000
Facsimile: 000-000-0000 Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
9.06 Assignment. This Agreement and all of the provisions hereof will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, except that neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned by
either party hereto without the prior written consent of the other party hereto.
22
9.07 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
9.08 Complete Agreement. This Agreement and the Exhibits hereto, the
Disclosure Schedule and the other documents referred to herein contain the
complete agreement between the parties and supersede any prior understandings,
agreements or representations by or between the parties, written or oral, which
may have related to the subject matter hereof in any way.
9.09 Counterparts. This Agreement may be executed by facsimile
signature and in one or more counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts taken together,
when executed and delivered, will constitute one and the same instrument.
9.10 Governing Law. The internal law, without regard to conflicts of
laws principles, of the State of Delaware will govern all questions concerning
the construction, validity and interpretation of this Agreement and the
performance of the obligations imposed by this Agreement, provided, however,
that the Share Transfer Agreement shall be governed by the laws of Germany. Any
dispute arising out of this Agreement shall be venued in the United States and
each of the parties hereto irrevocably consents to the exclusive jurisdiction of
any court located either within the State of Minnesota, County of Hennepin, or
the State of Ohio, County of Cuyahoga, in connection with any matter based upon
or arising out of this Agreement or the matters contemplated herein, agrees that
process may be served upon them in any manner authorized by either the Laws of
the State of Minnesota or the State of Ohio for such persons, and waives and
covenants not to assert or plead any objection that they might otherwise have to
such jurisdiction and such process.
9.11 Transfer, Sales and Use Tax. Any and all transfer, sales and use
tax liability arising as a result of the sale and purchase of the Assets shall
be the responsibility of the party who would customarily pay such tax and such
tax liability shall not be subject to the limitations of liability set forth in
Article 8.
[THE REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK.]
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
MTS SYSTEMS CORPORATION
By /s/ Xxxxxxxxx Xxxxxx
-------------------------------------
Its Attorney-in-fact pursuant to
power of attorney dated
April 9, 2003
-------------------------------------
PARKER HANNIFIN HOLDING GMBH
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Its Attorney-in-fact pursuant to
power of attorney dated
April 11, 2003
-------------------------------------
[SIGNATURE PAGE TO GERMAN SHARE PURCHASE
AND TRANSFER AGREEMENT]
24
EXHIBIT LIST
------------
A. Asset Purchase Agreement
B. Share Transfer Agreement
SCHEDULES
---------
Schedule 1 Products
Schedule 3.04 Consents
Schedule 3.05(a) Leases
Schedule 3.05(c) Encumbrances
Schedule 3.05(d) Equipment
Schedule 3.07(a) Contracts
Schedule 3.07(b) Open Purchase Orders
Schedule 3.08 Litigation
Schedule 3.09 Compliance With Laws
Schedule 3.14 Intellectual Property
Schedule 3.15 2002 Financial Statements
Schedule 3.15(b) Accounts Receivable
Schedule 3.15(c) Inventory
Schedule 3.20 Top 10 customers
Schedule 3.21 Actions since 9/28/2002
Schedule 5.06 Form of Closing Balance Sheet
