SALE AND PURCHASE AGREEMENT
EX-10.1
2
file2.htm
SALE & PURCHASE AGREEMENT
EXHIBIT 10.1
File No. 1197/2007 P
Notarized in the City of Cologne
In the offices of Freshfields Bruckhaus Xxxxxxxx,
Heumarkt 14, 50667 Cologne,
Where the notary came on the request of the parties,
this 9th and 10th June 2007.
Before Notary Public Xx. Xxxxx Xxxxxxx at Cologne
appeared
1. Xx. Xxxxxx Xxxxxxxxx, born 20 April 1974, business address Mainzer
Xxxxxxxx(beta)e 46, 60325 Frankfurt a.M., duly identified by means of his
valid German identity card, not acting in his own name but as
representative upon power of attorney submitted to the notary in the
original for AUTOMOTIVE SEALING SYSTEMS S.A., a stock corporation organised
under the laws of Luxembourg with seat at Luxembourg, Luxembourg, and
registered with the Registre de Commerce et des Societes (Luxembourg) under
docket number B 75244, Xxxxxx xx xx Xxxx 00, 0000 Xxxxxxxxxx, Xxxxxxxxxx,
- Automotive Sealing Systems S.A. hereinafter also referred to as the
"SELLER"),
2. Xx. Xxxxx Xxxxx, born 2 November 1964, business address Xxxxxxxx 00, 00000
Xxxx, personally known to the notary, not acting in his own name but
a) as representative on the basis of a power of attorney submitted to the
notary in the original for Xxxxxx Standard Automotive Inc., a
corporation organized under the laws of Ohio, USA, with seat at 00000
Xxxxxxx Xxxx Xxxxx, Xxxx, XX 00000, XXX
(Xxxxxx Standard Automotive Inc. hereinafter also referred to as the
"PURCHASER 1"),
b) as representative on the basis of a power of attorney submitted to the
notary in the original for CSA Germany GmbH & Co. KG, a limited
partnership established
under the laws of Germany, registered in the commercial register of
the County Court of Cologne (HRA 25019), with seat at Cologne,
Xxxxxxxx 00, 00000 Xxxxxxx,
(XXX Xxxxxxx GmbH & Co. KG hereinafter also referred to as the
"PURCHASER 2"),
(the Purchaser 1 and the Purchaser 2 hereinafter also collectively
referred to as the Purchasers; Seller and the Purchasers hereinafter
also collectively referred to as the "PARTIES", and each of them as a
"PARTY")
The persons appearing requested the following declarations to be recorded in the
English language. The notary who speaks English ascertained that the parties
appearing have command of the English language.
The persons appearing then declared:
The Parties hereby enter into the
SALE AND PURCHASE
AGREEMENT
which together with the annexes and exhibits to it is taken as attachment this
agreement.
----------
MAPS GmbH owns real estate.
The notary has pointed out, that notice of any transfer of shares in a limited
liability company according to Section 16 of GmbH-Act has to be given to the
Company, and according to Section 40 GmbH-Act to the court in which the Company
is registered, after the transfer has become effective, and that Transferee may
not be treated as shareholder by the Company, before the Company has been
notified of the transfer.
The notary has further drawn the attention of the parties to sections 22 and 24
of the GmbH-Gesetz.
Formal reference is made to annexes 1.4, 5.1, 7.5, 7.7, 7.8.1, 7.11.1, 7.11.2,
7.11.4, 7.16.1, 7.16.1(b) 7.16.2, 7.18, 7.20, 8.5(a), and 8.6 as well as the
annexes to the IP License Agreements taken as Annex 4.6(11) to the attachment to
the Sale and Purchase Agreement (Verweisung xxxx(beta) Section 14 BeurkG). These
annexes have been submitted to the persons
appearing for inspection and signed by them on each page. The persons appearing
waived their right to have these documents read out to them.
This document
and the agreement taken as attachment to this document together with the other
annexes were read out by the Notary Public to the persons appearing, approved by
them and signed by them and the Notary Public.
gez. X. Xxxxxxxxx
gez. Aleth
gez. Xxxxxxx, Notary
================================================================================
SALE AND PURCHASE AGREEMENT
REGARDING THE SALE AND PURCHASE OF SHARES
IN
METZELER AUTOMOTIVE PROFILE SYSTEMS EUROPE GMBH,
METZELER AUTOMOTIVE PROFILE SYSTEMS ITALY SPA,
AND METZELER AUTOMOTIVE PROFILES INDIA PRIVATE LTD.
================================================================================
DATED 9 JUNE 2007
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SALE AND PURCHASE AGREEMENT
by and between
AUTOMOTIVE SEALING SYSTEMS S.A.
Xxxxxx xx xx Xxxx 00, 0000 Xxxxxxxxxx, Xxxxxxxxxx
(hereinafter also referred to as the "SELLER"),
AND
1. XXXXXX STANDARD AUTOMOTIVE INC.
00000 Xxxxxxx Xxxx Xxxxx, Xxxx, XX 00000, XXX
(hereinafter also referred to as the "PURCHASER 1"),
2. CSA GERMANY GMBH & CO. KG
registered with the commercial register of the local court of Cologne under HRA
25019,
(hereinafter also referred to as the "PURCHASER 2"),
(the Purchaser 1 and the Purchaser 2 hereinafter also collectively referred to
as the Purchasers; Seller and the Purchasers hereinafter also collectively
referred to as the "PARTIES", and each of them as a "PARTY")
dated 9 June 2007.
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION......................................... 6
1.1 Capitalized Terms................................................. 6
1.2 References........................................................ 6
1.3 Headings.......................................................... 7
1.4 Annexes........................................................... 7
2. CORPORATE STRUCTURE.................................................... 7
2.1 MAPS Europe GmbH.................................................. 7
2.2 MAPS Italy........................................................ 9
2.3 MAP India......................................................... 11
3. SALE AND PURCHASE OF THE SHARES; RIGHT TO PROFITS...................... 11
3.1 Sale and Purchase of the Shares; Right to Profits................. 11
3.2 Transfer of Seller's Share in MAPS Europe GmbH / Separate Transfer
Documents for other Shares........................................ 12
3.3 Right to Companies' Name, Trademarks etc.......................... 13
4. CLOSING; CONDITIONS PRECEDENT.......................................... 13
4.1 Closing; Closing Date............................................. 13
4.2 Conditions Precedent.............................................. 14
4.3 Waiver of Conditions Precedent.................................... 15
4.4 Obligations with respect to the Conditions Precedent.............. 15
4.5 Consequences of Non-satisfaction of the Conditions Precedent...... 15
4.6 Consummation of the Transactions.................................. 16
5. PURCHASE PRICE; CONDITIONS OF PAYMENT.................................. 17
5.1 Purchase Price.................................................... 17
5.2 Preliminary Purchase Price and Closing Payments................... 18
5.3 Purchase Price Adjustment......................................... 19
5.4 Payments to Seller................................................ 20
5.5 Payments to Purchasers............................................ 20
5.6 Warranty Escrow; Insurance........................................ 20
5.7 India Escrow...................................................... 23
5.8 China Escrow...................................................... 24
5.9 Allocation of Purchase Price...................................... 24
5.10 Settlement of Intra-Group Indebtedness............................ 24
6. DETERMINATION OF THE FINAL PURCHASE PRICE.............................. 25
6.1 Accounting Documents.............................................. 25
6.2 Draft Closing Date Balance Sheet.................................. 25
6.3 Review............................................................ 25
6.4 No Objection...................................................... 25
6.5 Objections........................................................ 25
6.6 Settlement........................................................ 26
6.7 Expert Referee Proceedings........................................ 26
6.8 Access to Information............................................. 27
7. SELLER'S GUARANTEES.................................................... 27
7.1 Enforceability, No Conflict....................................... 27
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7.2 Existence and Capitalization of Companies, Ownership of Shares.... 28
7.3 Bankruptcy or Judicial Composition Proceedings.................... 28
7.4 Enterprise Agreements............................................. 28
7.5 Material Agreements............................................... 29
7.6 Compliance with Material Agreements............................... 29
7.7 Largest Customers and Largest Suppliers........................... 29
7.8 Material Intellectual Property Rights............................. 30
7.9 Litigation........................................................ 31
7.10 Tax Returns, etc.................................................. 31
7.11 Collective Labor Agreements....................................... 32
7.12 Labor Relations................................................... 32
7.13 Financial Statements.............................................. 33
7.14 Conduct of Business............................................... 33
7.15 Compliance with Laws.............................................. 33
7.16 Real Property..................................................... 33
7.17 Other Fixed Assets, Current Assets................................ 34
7.18 Insurances........................................................ 34
7.19 Licenses and Permits.............................................. 34
7.20 Public Grants..................................................... 35
7.21 Environment....................................................... 35
7.22 MAPS China........................................................ 35
8. REMEDIES............................................................... 36
8.1 Restitution in Kind; Damages...................................... 36
8.2 De Minimis, Basket................................................ 37
8.3 Cap............................................................... 37
8.4 Guarantee Insurance............................................... 37
8.5 Disclosure........................................................ 38
8.6 Knowledge......................................................... 38
8.7 Exclusion of further Remedies..................................... 38
9. INDEMNITIES............................................................ 39
9.1 Tax Indemnity..................................................... 39
9.2 Environmental Indemnity........................................... 41
9.3 Specific Customer Indemnity....................................... 42
9.4 Claw-Back Indemnity............................................... 43
9.5 Product Liability Indemnity....................................... 43
10. SCOPE OF SELLERS' LIABILITY............................................ 44
10.1 Time Limits....................................................... 44
10.2 Suspension........................................................ 45
10.3 No Relief......................................................... 45
10.4 Knowledge of the Purchasers....................................... 46
10.5 Cumulative Claims................................................. 46
10.6 Exclusion of further Claims....................................... 47
11. PARTICIPATION, INFORMATION, ETC........................................ 47
11.1 Information of Claims............................................. 47
11.2 Third party claims................................................ 48
11.3 Repayments........................................................ 48
12. COVENANTS.............................................................. 49
12.1 Seller's Covenants................................................ 49
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12.2 Indemnification................................................... 51
12.3 Purchasers' Covenants............................................. 51
13. NON-SOLICITATION....................................................... 52
13.1 Non-Compete....................................................... 52
13.2 Non-Solicitation.................................................. 52
14. MAP INDIA.............................................................. 53
14.1 Pre-emptive Right of Toyoda....................................... 53
14.2 Alternative 1: Toyoda does not exercise its Pre-emptive Right..... 53
14.3 Alternative 2: Toyoda exercises its Pre-emptive Right............. 54
15. MAPS CHINA............................................................. 54
16. MERGER NOTIFICATION.................................................... 55
16.1 Notification of the Transactions.................................. 55
16.2 Clearance of the Transactions subject to Conditions............... 56
16.3 Non-Clearance of the Transactions................................. 57
17. CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS............................... 57
17.1 Confidentiality in Relation to Company............................ 57
17.2 Confidentiality in Relation to this Agreement and the Parties..... 57
17.3 Public Announcements.............................................. 57
18. COSTS AND TRANSFER TAXES............................................... 58
18.1 Costs of Advisors................................................. 58
18.2 Other Costs; Fees................................................. 58
18.3 Transfer Taxes.................................................... 58
19. LIABILITY; ASSIGNMENTS OF RIGHTS AND OBLIGATIONS....................... 58
19.1 Joint and Several Liability....................................... 58
19.2 No Assignment without Consent..................................... 58
19.3 Assignment by Purchasers.......................................... 58
20. NOTICES................................................................ 59
20.1 Form of Notice.................................................... 59
20.2 Representation of the Purchasers.................................. 59
20.3 Notices to Seller................................................. 59
20.4 Notices to Purchasers............................................. 60
20.5 Copies to Advisor and / or Acting Notary.......................... 60
21. GOVERNING LAW.......................................................... 60
22. ARBITRATION............................................................ 60
23. MISCELLANEOUS.......................................................... 61
23.1 Interest under this Agreement..................................... 61
23.2 Amendments; Supplementation....................................... 61
23.3 Entire Agreement.................................................. 61
23.4 Severability...................................................... 61
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RECITALS
WHEREAS, Purchaser 1 is a global automotive supplier, providing weather sealing
products, fluid handling products, and noise, vibration and harshness control
products to motor vehicle manufacturers worldwide;
WHEREAS, Purchaser 2 is an indirect subsidiary of Purchaser 1,
WHEREAS, Seller through certain of its Affiliates engages in the automotive
weather sealing business;
WHEREAS, the Seller wishes to divest certain parts of its automotive weather
sealing business by selling all of its shares in (i) Metzeler Automotive Profile
Systems Europe GmbH ("MAPS EUROPE GMBH"), (ii) Metzeler Automotive Profile
Systems Italy S.p.A. ("MAPS ITALY"), and (iii) Metzeler Automotive Profiles
India Private Ltd ("MAP INDIA") and their respective subsidiaries - MAPS Europe
GmbH, MAPS Italy and MAP India hereinafter collectively referred to as the
"TARGET COMPANIES" - and the Purchasers wish to acquire these shares.
NOW, THEREFORE, the Parties agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 CAPITALIZED TERMS
Capitalized Terms used in this Agreement shall have the meaning set forth
in Annex 1.1.
1.2 REFERENCES
1.2.1 A reference to any statute or statutory provision shall be construed as a
reference to the same as it has been in force as of Signing, unless
indicated otherwise.
1.2.2 References to any defined term in the singular shall, if the context so
demands, also include the plural and vice versa.
1.2.3 References to any German legal term for any action, remedy, method of
judicial proceedings, legal document, legal status, court, official or
any other legal concept shall, in respect of any jurisdiction other than
Germany, be interpreted to include the legal concept which most closely
corresponds in that jurisdiction to the German legal term. In this
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Agreement where a German term has been inserted in italics it alone (and
not the English term to which it relates) shall be authoritative for the
purpose of the interpretation of the relevant English term in this
Agreement.
1.3 HEADINGS
Headings are for convenience only and do not affect the interpretation of
this Agreement.
1.4 ANNEXES
Annexes and any other attachments hereto as set forth in Annex 1.4 form
part of this Agreement and any reference to this Agreement shall include
such Annexes and other attachments hereto.
2. CORPORATE STRUCTURE
2.1 MAPS EUROPE GMBH
2.1.1 MAPS Europe GmbH is a limited liability company (Gesellschaft mit
beschrankter Haftung) duly organized under the laws of Germany with
registered office at Lindau and registered with the Commercial Register
of the Lower Court (Amtsgericht) at Kempten under HRB 4748.
2.1.2 The registered share capital (Stammkapital) of MAPS Europe GmbH amounts
to EUR 7,700,000.00 (seven million, seven hundred thousand Euros)
(hereinafter referred to as the "REGISTERED SHARE CAPITAL OF MAPS EUROPE
GMBH"), represented by one share, which is held by the Seller ("SELLER'S
SHARE IN MAPS EUROPE GMBH).
2.1.3 MAPS Europe GmbH holds:
(1) 100% of the shares in METZELER Automotive Profile Systems GmbH
("MAPS GMBH"), a limited liability company (Gesellschaft mit
beschrankter Haftung) duly organized under the laws of Germany with
registered office at Lindau and registered with the Commercial
Register of the Lower Court (Amtsgericht) at Kempten under HRB
4153, having a registered share capital (Stammkapital) in the
amount of EUR 30,680,000.00 (thirty million, six hundred and eighty
thousand Euros) and
(2) 100% of the shares in Metzeler Automotive Profile Systems
Dzierzoniow sp. z.o.o. ("MAPS DZIERZONIOW"), a limited liability
company (spolka z ograniczona odpowiedzialnoscia) duly organized
under the laws of Poland with registered office at Dzierzoniow and
registered with the National Court Register (commercial) (Krajowy
Rejestr Xxxxxx) under KRS No. 45644, having a registered share
capital (kapital zakladowy) in the amount
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of PLN 13,839,000.00 (thirteen million eight hundred thirty nine
thousand Polish Zloty).
2.1.4 MAPS GmbH holds:
(1) 100% of the shares in METZELER Technical Rubber Systems GmbH ("MTRS
GMBH"), a limited liability company (Gesellschaft mit beschrankter
Haftung) duly organized under the laws of Germany with registered
office at Edingen-Neckarhausen and registered with the Commercial
Register of the Lower Court (Amtsgericht) at Mannheim under HRB
337880, having a registered share capital (Stammkapital) in the
amount of EUR 250,000.00 (two hundred and fifty thousand Euros);
and
(2) 100% of the shares in Metzeler Kautschuk Unterstutzungskasse
Gesellschaft mit beschrankter Haftung ("MKU GMBH"), a German
limited liability company (Gesellschaft mit beschrankter Haftung)
duly organized under the laws of Germany with registered office at
Munchen and registered with the Commercial Register of the Lower
Court (Amtsgericht) at Munchen under HRB 52857, having a registered
share capital (Stammkapital) in the amount of EUR 50,000.00 (fifty
thousand Euros); and
(3) 100% of the shares in Metzeler Automotive Profile Systems Polska
sp. z.o.o. ("MAPS POLSKA"), a limited liability company (spolka z
ograniczona odpowiedzialnoscia) duly organized under the laws of
Poland with registered office at Dzierzoniow and registered with
the National Court Register (commercial) (Krajowy Rejestr Xxxxxx)
under KRS No. 55055, having a registered share capital (kapital
zakladowy) in the amount of PLN 60,000,000.00 (sixty million Polish
Zloty); and
(4) 100% of the shares in Metzeler Automotive Profiles Baranowitschi
GmbH ("MAP BELARUS"), a Belorussian limited liability company, duly
organized under the laws of the Republic of Belarus, with
registered office at Brest/Belarus and registered with the Public
Central Register for Legal Entities of the Republic of Belarus
under number 290478219, having a registered share capital in the
amount of USD 20,000.00 (twenty thousand Dollars).
2.1.5 The following domination and profit and loss pooling agreements
(Beherrschungs- und Gewinnabfuhrungsvertrag) are in place in Germany:
(1) MAPS Europe GmbH and MAPS GmbH have entered into a domination and
profit and loss pooling agreement (Beherrschungs- und
Gewinnabfuhrungsvertrag) dated 20 December 2002, a copy of which
was provided in the Data Room.
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(2) MAPS GmbH and MTRS GmbH have entered into a domination and profit
and loss pooling agreement (Beherrschungs- und
Gewinnabfuhrungsvertrag) dated 22 November 2002), a copy of which
was provided in the Data Room.
2.1.6 By share pledge agreements dated 14 April 2005,
(1) Seller has pledged Seller's Share in MAPS Europe GmbH;
(2) MAPS Europe GmbH has pledged its share in MAPS GmbH; and
(3) MAPS Europe GmbH has pledged its shares in MAPS Dzierzoniow
to The Royal Bank of Scotland plc. ("RBS").
2.1.7 By a Polish share pledge agreement dated 28 April 2005, MAPS GmbH has
pledged its shares in MAPS Polska to RBS.
2.2 MAPS ITALY
2.2.1 MAPS Italy is a stock corporation (societa per azioni) established under
the laws of Italy with registered office at 10073 Cirie (TO), xxx Xxxxxx
000, and registered with the Registry of Enterprises of Turin under no.
06816540014.
2.2.2 The issued and fully paid up share capital of MAPS Italy amounts to EUR
22,464,000.00 (twenty-two million, four hundred and sixty-four thousand
Euros) (hereinafter referred to as the "SHARE CAPITAL OF MAPS ITALY").
The Share Capital of MAPS Italy is divided into 43,200,000.00
(forty-three million, two hundred thousand) ordinary shares par value EUR
0.52 (zero point fifty-two Euros) each, all of which are held by the
Seller (hereinafter collectively referred to as the "SELLER'S SHARES IN
MAPS ITALY").
2.2.3 MAPS Italy holds:
(1) 100% of the shares in Metzeler Automotive Profile Systems Piotrkow
sp. z.o.o. ("MAPS PIOTRKOW"), a limited liability company (spolka z
ograniczona odpowiedzialnoscia) duly organized under the laws of
Poland with registered office at Warszawa and registered with the
National Court Register (commercial) (Krajowy Rejestr Xxxxxx) KRS
No. 18171, having a registered share capital (kapital zakladowy) in
the amount of PLN 2,758,000.00 (two million seven hundred fifty
eight thousand Polish Zloty);
(2) 99.9% of the shares in Metzeler Automotive Profile Systems Benelux
NV ("MAPS BENELUX"), a limited liability company (Naamloze
Vernootschop) duly organized under the laws of Belgium with
registered office at Xxxxxxxxxxxxx 0, 0000 Xxxx,
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Xxxxxxx, and registered with the Register of Legal Entities of
Brussels under number 0414.394.391, having a registered share
capital of 94,500 shares in the amount of EUR 1,768,450 (one
million seven hundred and sixty-eight thousand and four hundred and
fifty Euros); one share in MAPS Benelux is held by Metzeler
Automotive Profile Systems Transieres S.A.
(3) 47.5% of the shares in Shanghai SAIC-Metzeler Sealing Systems Co
Ltd ("SHANGHAI SAIC-METZELER"), a joint venture in the form of a
limited liability company (Sino-foreign joint venture) duly
established under the laws of the Peoples' Republic of China with
registered office at No. 4600 Wai Qing Song Rd., Qingpu District,
Shanghai, PRC and registered with Shanghai Municipal Administration
of Industry and Commerce, having a registered capital of USD
21,930,000.00 (twenty-one million, nine hundred thirty thousand US
Dollars), which has been fully paid up. The registered capital of
Shanghai SAIC-Metzeler is currently held 47.5% by Shanghai
Automotive Industry Corporation (Group), 47.5% by MAPS Italy and 5%
by Shanghai Qinpu Zhaotun Collective Asset Management Company; and
(4) MAPS Italy also holds 100% of the shares in Metzeler Automotive
Profile Systems VLM SAS, a limited liability company, duly
organized in Briey (54) under the laws of France with registered
office at 00, xxxxxx Xxxxx x Xxxxx 00000 and registered with the
Registre du Commerce et des Societes de Paris under number
349537498 ("MAPS VLM"). For the avoidance of doubt, the shares in
MAPS VLM will be sold and transferred to the Seller (or a
Luxembourg corporation wholly owned and nominated by it) prior to
Closing for a consideration of approximately EUR 2,146,771.00 (two
million one hundred forty six thousand seven hundred seventy one
Euros); and all liabilities and obligations between MAPS VLM and
Target Group Companies shall be terminated and settled, except for
trading liabilities (Verbindlichkeiten aus Lieferungen und
Leistungen) in the ordinary course of business.
2.2.4 Shanghai SAIC-Metzeler holds:
(1) 70% of the shares in SAIC-Metzeler Sealing Systems (Huai'an) Co.
Ltd., a Sino-foreign joint venture in the form of a limited
liability company duly established under the laws of the People's
Republic of China. The remaining 30% of the shares in SAIC-Metzeler
Sealing Systems (Huai'an) Co., Ltd. are held by Huai'an Chemical
Assets Operation Co. Ltd.; and
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(2) 70% of the shares in SAIC-Metzeler Sealing Systems (Guangzhou) Co.
Ltd. a Sino-foreign joint venture in the form of a limited
liability company duly established under the laws of the Peopole's
Republic of China. The remaining 30% of the shares in SAIC-Metzeler
Sealing Systems (Guangzhou) Co., Ltd. are held by Hong Kong China
Lounge Investments Ltd.
2.2.5 Seller has pledged all of Seller's shares in MAPS Italy to RBS by share
pledge agreement dated 14 April 2005.
2.3 MAP INDIA
2.3.1 MAP India is a limited liability company duly organized under the laws of
India with registered office at New Delhi and registered with the
Registrar of Companies, NCT of Delhi and Haryana, India. MAP India is a
joint venture between Seller and Toyoda Gosei Co Ltd ("TOYODA"), a
company incorporated in Japan. A copy of the Joint Venture Agreement
between Xxxxxxxx Corporation, Toyoda, Seller and MAP India was provided
in the Data Room ("MAP INDIA JVAGREEMENT").
2.3.2 The share capital of MAP India amounts to 225,546,700 Indian Rupees
(hereinafter referred to as the "SHARE CAPITAL OF MAP INDIA"). 74% of the
Share Capital of MAP India are held by the Seller (hereinafter
collectively referred to as the "SELLER'S SHARES IN MAP INDIA"), the
remaining 26 % are held by Toyoda.
3. SALE AND PURCHASE OF THE SHARES; RIGHT TO PROFITS
3.1 SALE AND PURCHASE OF THE SHARES; RIGHT TO PROFITS
The Seller hereby sells, and the Purchasers hereby purchase, upon the
terms and conditions of this Agreement and with effect as of the Closing
Date, all of the Seller's shares in the Target Companies:
(1) The Seller hereby sells, and the Purchaser 1 hereby purchases, all
of the Seller's Shares in MAPS Italy and all of the Seller's Shares
in MAP India;
(2) The Seller hereby sells, and the Purchaser 2 hereby purchases, all
of the Seller's Share in MAPS Europe GmbH;
(3) The Purchaser 1 shall have the right to withdraw (Rucktrittsrecht)
as purchaser from this Agreement in respect of the Seller's Shares
in MAPS Italy if this does not delay Closing and if the substitute
purchaser(s) adhere(s) to this Agreement in notarial form prior to
the Closing, such right to be exercised in writing at Purchaser's 1
discretion and notified not later than two (2) weeks prior to the
Closing.
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If this right is exercised, the Purchaser 1 shall designate in
writing a direct or indirect wholly owned subsidiary of the
Purchaser 1 as the new purchaser under this Agreement (the
"SUBSTITUTE PURCHASER"). The adherence deed shall be entered into
substantially in the form set out in Annex 3.1(2). If the Purchaser
1 exercises its right to withdraw in compliance with the
requirements described above, then the Substitute Purchaser shall
ipso jure and immediately become the purchaser under this Agreement
for the relevant Shares and be treated as though it had been the
original purchaser for the relevant Shares under this Agreement and
have all and the same rights and obligations in respect of the
relevant Shares as the Purchaser 1 had under this Agreement.
The original Purchaser 1 shall remain jointly and severally liable
for any and all obligations of the original Purchaser 1 and the
Substitute Purchaser under and/or in connection with this
Agreement.
(4) To the extent the same is not owned by a Target Group Company on
Closing, the Seller hereby procures to sell to a purchaser
nominated by Purchaser 1 the one share held by Metzeler Automotive
Profile Systems Transieres S.A. in MAPS Benelux at a par value of
EUR 18.71 (eighteen Euros and seventy-one cents) per share.
It is understood that the sale hereunder (as well as all other provisions
hereof) shall in any case apply to all present and future shares held by
the Seller in the Target Companies, even if such Shares should have a par
value other than as set forth in Section 2. The sale and purchase of the
Shares hereunder shall include any and all rights pertaining to the
Shares, including, without limitation, the right to receive dividends,
which have not yet been distributed prior to the Closing Date.
3.2 TRANSFER OF SELLER'S SHARE IN MAPS EUROPE GMBH / SEPARATE TRANSFER
DOCUMENTS FOR OTHER SHARES
3.2.1 The Seller hereby transfers to the Purchaser 2 the Seller's Share in MAPS
Europe GmbH subject to the condition precedent of the payment of the
amounts stipulated in Section 5.2.3 below. The Purchaser 2 hereby accepts
such transfer.
3.2.2 The Seller and the Purchasers agree that the other Shares (i.e. other
than Seller's Share in MAPS Europe GmbH) sold and purchased hereunder are
not transferred by virtue of this Agreement, but will be transferred with
effect "in rem" (mit dinglicher Wirkung) at the Closing by means of
separate transfer documents or any such other documents and instruments
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which the Purchasers reasonably request to be executed and delivered in
order to pass title to the other Shares to the Purchasers.
3.3 RIGHT TO COMPANIES' NAME, TRADEMARKS ETC.
(1) The Purchasers, the Target Companies and the direct or indirect
subsidiaries of the Target Companies as referred to in Section 2,
including, for the avoidance of doubt, only participations
representing more than 50% of the share capital or voting rights,
and excluding MAPS VLM ("SUBSIDIARIES") (the Target Companies and
the Subsidiaries collectively referred to in this Agreement as the
"TARGET GROUP COMPANIES" and each of them a "TARGET GROUP COMPANY")
and their successors and assignees shall be entitled, but in no way
obliged, to operate under the present names of the Target Group
Companies or variations thereof, provided that nothing herein shall
obligate the Target Group Companies to operate under such names and
that nothing herein shall be construed explicitly or implicitly as
a warranty, guarantee or other undertaking as to whether the Target
Group Companies have or will have such rights.
(2) Notwithstanding the foregoing for a period of one (1) year (in the
case of North America two (2) years) from the Closing Date the
Seller and its Affiliates shall be for the aforementioned time
period irrevocably permitted to use the "Metzeler" name as
currently used as part of their corporate names, trading names,
domain names, logos and for all other purposes of their businesses,
products and marketing (subject always to any restrictions arising
under licenses from third parties in respect of the "Metzeler"
name), provided that any packaging, products or marketing materials
bearing the "Metzeler" name including as part of a corporate name
then in existence may be used or sold for a maximum transitional
period of six months after expiry of the relevant period. If the
Seller sells any entity which is at the date hereof an Affiliate it
shall grant the foregoing right to use the "Metzeler" name and
impose the foregoing restrictions upon the purchaser. For the
avoidance of doubt, nothing herein shall be construed explicitly or
implicitly as a warranty, guarantee or other undertaking as to
whether the Purchasers or any of the Target Group Companies have or
will have have such rights.
4. CLOSING; CONDITIONS PRECEDENT
4.1 CLOSING; CLOSING DATE
The consummation of the transactions contemplated by this Agreement
(heretofore and hereinafter referred to as the "CLOSING") shall, unless
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otherwise agreed by the Parties, take place after satisfaction or waiver
of all Conditions Precedent as follows:
(a) if the last Condition Precedent under Section 4.2.1 is satisfied
five (5) Business Days or more before the last day of a calendar
month, Closing shall take place on the last day of that calendar
month; or
(b) if the last Condition Precedent under Section 4.2.1 is satisfied in
the last five (5) Business Days of a calendar month, Closing shall
take place on the fifth (5th) Business Day following satisfaction
of that Condition Precedent; but
(c) at the earliest on the day on which a 60-day period following the
Signing Date has expired.
The Closing will take place at the offices of Xxxxxxxx Chance in
Frankfurt, Germany (with certain Closing items possibly executed
elsewhere). The date on which Closing occurs is hereinafter referred to
as the "CLOSING DATE".
4.2 CONDITIONS PRECEDENT
The obligation to carry out the Closing shall be subject to the
satisfaction of each of the following conditions precedent (aufschiebende
Bedingungen) (heretofore and hereinafter collectively referred to as the
"CONDITIONS PRECEDENT", and each of them a "CONDITION PRECEDENT"):
4.2.1 (1) The German Federal Cartel Office (Bundeskartellamt) shall have
cleared the transaction. This condition shall be deemed satisfied
if (i) the Purchasers and / or the Seller has received a written
notice from the German Federal Cartel Office that it will not
prohibit the acquisition, or (ii) the German Federal Cartel Office
fails to notify the Purchasers and / or Seller within one month
after the pre-merger filing in accordance with Section 40 para. 1
clause 1 of the German Act Against Restraints on Competition (GWB)
that it has commenced a formal investigation of the proposed
acquisition, or (iii) the German Federal Cartel Office fails to
issue an order in accordance with Section 40 para. 2 clause 1 GWB
to the Purchasers and / or the Seller within four months after
receipt of the pre-merger filing by the Federal Cartel Office, and
no extension of the four-months period has been agreed with the
Federal Cartel Office. Neither Purchasers nor Seller shall grant
its consent and approval to any extension of the waiting periods
without the prior written consent of the respective other Party
involved; and
(2) All further antitrust clearances specified in Annex 4.2.2 shall
have been received.
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For the purposes of Section 4.2.1, the Parties (i) undertake to
furnish all information that has to be supplied by them in due
time, completely and correct and (ii) will agree an approach and
strategy for contacting the competent authorities for the antitrust
clearances and making the filings in order to obtain as soon as
possible the authorities' decisions regarding the proposed
transaction.
4.2.2 No breach of Guarantee has occurred which constitutes a material adverse
change to the assets, financial position, results of operations or
business operations of the Target Group Companies taken as a whole,
provided, however, that changes in the general economic and general legal
environment and all other externalities of general application shall not
constitute a material adverse change in this sense ("MATERIAL ADVERSE
CHANGE").
4.2.3 Receipt of all necessary statutory consents and approvals from the
Reserve Bank of India and the Foreign Investment Promotion Board in
connection with the intended sale and transfer of the Seller's Shares in
MAP India under this Agreement.
4.3 WAIVER OF CONDITIONS PRECEDENT
The Purchasers shall be entitled in their absolute discretion, by written
notice to the Seller, to waive the Condition Precedent set forth in
Section 4.2.2.
4.4 OBLIGATIONS WITH RESPECT TO THE CONDITIONS PRECEDENT
The Seller and the Purchasers shall inform each other in writing without
undue delay (unverzuglich) as soon as any or all of the Conditions
Precedent have been satisfied.
4.5 CONSEQUENCES OF NON-SATISFACTION OF THE CONDITIONS PRECEDENT
4.5.1 Both the Seller and the Purchasers shall have the right to rescind
(zurucktreten) this Agreement by written notice by the rescinding Party
to the other Party with a copy to the acting notary if the Condition
Precedent set forth in Section 4.2.1 hereof has not been satisfied, at
the latest, 4 months after the date of this Agreement.
4.5.2 The Purchasers shall have the right to rescind this Agreement by written
notice to the Seller with a copy to the acting notary if the Condition
Precedent set forth in Section 4.2.2 has not been satisfied or waived as
of Closing.
4.5.3 Any rescission under this Section 4.5 shall be valid only if the
recipient Party has received such written notice of rescission prior to
the date on which the relevant Condition Precedent has been satisfied or
waived.
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4.6 CONSUMMATION OF THE TRANSACTIONS
At the Closing the Parties shall simultaneously execute and deliver the
following documents and take the following actions or cause such actions
to be taken simultaneously:
(1) The Seller shall deliver duly executed resignation letters of Xx.
Xxxxxxx Xxxx and. Xx. Xxxx Xxxxxxxx as Managing Directors /
Supervisory Board Members of the Target Group Companies, including
a confirmation by such Managing Directors / Supervisory Board
Members that they have no claims or rights against the Target Group
Companies, provided they have been discharged from any claims
against them by the competent body of relevant Target Group
Company.
(2) Release of securities granted by, or over the Shares and the assets
of the Target Group Companies which secure debt under the Senior
Facilities Agreement conditional only on receipt by RBS of an
amount equal to the financial debt of the Target Companies under
the Senior Facilities Agreement (including all accrued interest,
fees, penalties and similar obligations as at the Closing Date)
(the "SECURED FINANCIAL DEBT"), i.e. (i) release of all pledges of
shares in the Target Group Companies and (ii) release of other
security instruments regarding the shares and / or the assets of
the Target Group Companies, (iii) retransfer of all security
transfers by Target Group Companies, and (iv) release of all Target
Group Companies as obligors and / or guarantors in relation to the
Senior Facilities Agreement with RBS and the documentation related
thereto.
(3) [Intentionally blank].
(4) The Seller shall transfer the Seller's Shares in MAPS Italy to the
Purchaser 1 by way of endorsing and transferring the share
certificates to the Purchaser 1.
(5) The Seller shall transfer the Seller's Shares in MAP India, if on
or prior to the Closing Date Toyoda has (i) waived the Toyoda
Pre-emptive Right and (ii) given its consent to such transfer,
including any necessary board approval.
(6) The Purchasers shall deliver true copies of all relevant clearances
or statements of non-objection from the relevant authorities.
(7) The Seller shall deliver a certificate confirming that the
Condition Precedent set forth in Section 4.2.2 has been satisfied
as of the Closing Date.
(8) The Parties shall enter into the India Escrow Agreement, if
required pursuant to Section 5.7 and 14.
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(9) The Parties shall enter into the China Escrow Agreement, if
required pursuant to Section 5.8 and 15.
(10) The Parties shall enter into the Warranty Escrow Agreement,
pursuant to Section 5.6.
(11) The Seller shall deliver an executed copy of the IP License
Agreements.
(12) The Seller shall deliver an executed copy of the Supply Agreements.
(13) The Seller shall deliver the Updated Disclosure Letter.
(14) The Purchasers shall make the payments specified in Section 5.2.3.
Upon completion of Closing, the Conditions Precedent shall be deemed to
have been satisfied or waived.
5. PURCHASE PRICE; CONDITIONS OF PAYMENT
5.1 PURCHASE PRICE
The Purchase Price to be paid by the Purchasers for the Shares as sold
and purchased hereunder shall be the aggregate of:
(1) an amount of EUR 100,000,000 (Euros one hundred million);
less
(2) the aggregate amount of the Financial Debt as of the Closing Date
as reflected in the Closing Date Balance Sheet
plus
(3) the aggregate amount of Cash as of the Closing Date as reflected in
the Closing Date Balance Sheet, provided that Cash received by MAPS
Italy from the dividend referred to Section 5.1 (4) in excess of
its 50 % entitlement described in Section 5.1 (4) shall be
disregarded;
plus
(4) 50 % of the amount equal to MAPS Italy's entitlement to any
dividend relating to the year 2006 resolved or declared by Shanghai
SAIC-Metzeler or its shareholders on or prior to the Closing Date
(to the extent such amount has not been received in Cash by MAPS
Italy) on or before the Closing Date;
less
(5) the amount, if any, by which the balance of Net Working Capital at
the Closing Date as reflected in the Closing Date Balance Sheet
falls short of EUR 23,200,000 (Euros twenty-three million two
hundred thousand) ("NET REFERENCE WORKING CAPITAL");
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plus
(6) the amount, if any, by which the balance of the Net Working Capital
at the Closing Date as reflected in the Closing Date Balance Sheet
exceeds the Net Reference Working Capital;
less
(7) the net amount (if any) owing by the Target Group Companies to the
Seller or Sellers Affiliates under the intercompany loan agreements
set out in Annex 5.1 (the "INTER-COMPANY LOAN AGREEMENTS") (the
"INTER-GROUP NET PAYABLE"); and
plus
(8) the net amount (if any) owing by the Seller and its Affiliates to
the Target Group Companies under the Inter-Company Loan Agreements
(the "INTER-GROUP NET RECEIVABLE").
The aggregate of the amounts under items (1) less (2) plus (3) plus (4)
less (5) plus (6) less (7) plus (8) shall be referred to in this
Agreement as the "PURCHASE PRICE". In case Toyoda exercises the Toyoda
Pre-emptive Right, the Purchase Price shall be reduced by an amount equal
to the MAP India Price ("REDUCED PURCHASE PRICE").
5.2 PRELIMINARY PURCHASE PRICE AND CLOSING PAYMENTS
5.2.1 No later than three Business Days before the anticipated Closing Date,
the Parties, based on good faith estimates to be agreed by the Seller and
the Purchasers, shall preliminarily determine the Purchase Price
components as set forth in Section 5.1 and 12.1.3 and calculate an
estimated purchase price on that basis ("PRELIMINARY PURCHASE PRICE"). If
the Parties cannot reach an agreement on the Preliminary Purchase Price
as provided for in the preceding sentence, the Preliminary Purchase Price
shall be EUR 73,100,000 (in words: Euros seventy three million one
hundred thousand). If Toyoda has duly exercised the Toyoda Pre-emptive
Right and/or refused its consent to the transfer of Seller's Shares in
MAP India to Purchaser 1 by the Closing Date, the Preliminary Purchase
Price shall be reduced by an amount equal to the MAP India Price.
5.2.2 The Preliminary Purchase Price shall become due and payable at Closing
against simultaneous transfer (Zug um Zug gegen Ubertragung) of the
Shares; provided, however, that the Seller's Shares in MAP India, shall
only be included in such transfer if Toyoda has waived the Toyoda
Pre-emptive Right and given its consent to the transfer by the Closing
Date.
5.2.3 The following payments shall be made by Purchasers at Closing:
(1) EUR 3,500,000 (Warranty Escrow) shall be paid into the Warranty
Escrow Account;
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(2) if (a) Toyoda has not duly (i) exercised the Toyoda Pre-emptive
Right, (ii) rejected the proposal to waive the Toyoda Pre-emptive
Right or (iii) refused its consent to the transfer of the Seller's
Shares in MAP India, and (b) Toyoda is not barred under the MAP
India JVAgreement and the Shareholders Agreement / Articles /
Statutes of MAP India from (i) exercising the Toyoda Pre-emptive
Right or (ii) denying its consent to the contemplated share
transfer by the Closing Date, then an amount equal to the MAP India
Price (EUR 8,000,000) as reduced under section 14.2.2 (if relevant)
shall be paid into the India Escrow Account;
(3) if the China Selling Note has been issued, then an amount equal to
the MAP China Price (USD 15,300,000) shall be paid into the China
Escrow Account;
(4) if the conditions set forth in Section 14.2.1 are fulfilled, an
amount equal to the India WHT shall be paid to the relevant Tax
Authorities in India;
(5) the amount equal to the Preliminary Purchase Price (i) less the
amounts under (1), (2), (3) and (4) above and (ii) less an amount
equal to the estimated Inter-Group Net Receivable (if any) shall be
paid to the Seller;
(6) an amount equal to the Secured Financial Debt shall be paid to RBS;
and
(7) an amount equal to the estimated Inter-Group Net Payable (if any)
shall be paid to the Seller on behalf of the borrowers under the
Inter Company Loan Agreements.
5.3 PURCHASE PRICE ADJUSTMENT
5.3.1 If following a final determination of the Purchase Price components set
forth in Section 5.1 pursuant to the procedure provided for in Section 6
the Purchase Price is:
(1) higher than the Preliminary Purchase Price, the Purchasers shall
pay to the Seller an amount equal to the amount by which the
Purchase Price exceeds the Preliminary Purchase Price;
(2) lower than the Preliminary Purchase Price, the Seller shall pay to
the Purchasers an amount equal to the amount by which the
Preliminary Purchase Price exceeds the Purchase Price.
For the avoidance of doubt, the fact that the India Escrow Amount and
China Escrow Amount may or may not have been, or is to be, released to
Purchasers or Seller, and any receivable or payable created by
implementation of Section 15 shall be ignored for these purposes, i.e. it
shall not affect the determination of the final Purchase Price.
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5.3.2 Any such amount to be paid by either Purchasers or Seller ("PURCHASE
PRICE ADJUSTMENT") shall be paid, plus interest at a rate of 5 % p.a. (on
a 360 day year basis) from the Closing Date until the date of payment, as
follows:
(1) any Purchase Price Adjustment owed by the Purchasers shall be paid
by the Purchasers within five (5) Business Days after the Closing
Date Balance Sheet has become final and binding upon the Seller and
the Purchasers in accordance with Section 5.4 below into the
Seller's Account; and
(2) any Purchase Price Adjustment owed by the Seller shall be paid by
the Seller within five (5) Business Days after the Closing Date
Balance Sheet has become final and binding upon the Seller and the
Purchasers in accordance with Section 5.5 below into the
Purchasers' Account.
5.4 PAYMENTS TO SELLER
All payments owed by the Purchasers to the Seller under this Section 5
shall be paid by the Purchasers free and clear of costs and charges
(except the costs of the receiving bank) in immediately available funds
in Euros by wire transfer to the Seller's bank account kept with Fortis
Banque Luxembourg, Swift Code: XXXXXXXX, IBAN: LU 79 0030 0688 0364 0000,
or such other bank account as may be notified in writing by the Seller to
the Purchasers at least one week prior to the relevant payment date
(heretofore and hereinafter referred to as the "SELLER'S ACCOUNT").
5.5 PAYMENTS TO PURCHASERS
All payments owed by the Seller to the Purchasers under this Section 5
shall be paid by the Seller free and clear of costs and charges (except
the costs of the receiving bank) in immediately available funds in Euros
by wire transfer to the Purchasers' bank account kept with XX Xxxxxx
Chase - London, Swift Code: XXXXXX0X, IBAN (Account):
XX00XXXX00000000000000, or such other bank account as may be notified in
writing by the Purchasers to the Seller at least one week prior to the
relevant payment date (heretofore and hereinafter referred to as the
"PURCHASERS' ACCOUNT").
5.6 WARRANTY ESCROW; INSURANCE
As security for Guarantee Claims and other claims of the Purchasers under
this Agreement, Purchasers will withhold the amount of EUR 3,500,000 from
the Purchase Price ("WARRANTY ESCROW"). The Warranty Escrow shall be paid
into the escrow account (the "WARRANTY ESCROW ACCOUNT") based on an
escrow account agreement to be entered into by the Parties and the Escrow
Agent substantially in the form attached hereto as ANNEX
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5.6 (the "WARRANTY ESCROW AGREEMENT"). The funds in the Warranty Escrow
Account shall be held on the following terms:
5.6.1 Any fees of the escrow agent or other charges in connection with the
Warranty Escrow Account shall be charged to the Warranty Escrow Account.
5.6.2 Any interest generated on the Warranty Escrow Account (subject to any
deduction of tax at source) shall be credited to the Warranty Escrow
Account. The Seller and the Purchasers shall agree jointly the interest
periods applying to the funds contained in the Warranty Escrow Account
from time to time and instruct the escrow agent holding the Warranty
Escrow Account accordingly; in the absence of such agreement the interest
period shall be (i) the calendar month (Monatsgeld) except (ii) if the
period until the end of the Warranty Escrow Period (or until payment of a
claim to Purchasers is due) is less than a calendar month, in which case
it shall be one day (Tagesgeld). At the Closing, the Seller and the
Purchasers shall authorize and instruct the escrow agent holding the
Warranty Escrow Account to invest such funds accordingly.
5.6.3 Subject to Section 5.6.4 below, the funds in the Warranty Escrow Account
(including interest) ("WARRANTY ESCROW FUNDS") shall be retained and
dealt with as follows:
(1) the Warranty Escrow Funds shall be retained until 31 March 2009
(the "INITIAL WARRANTY ESCROW PERIOD");
(2) prior to, but with effect from, the expiry of the Initial Warranty
Escrow Period the Seller and the Purchasers shall issue joint
instructions to the escrow agent to release such portion of the
Warranty Escrow Funds (if any) as exceeds the aggregate of (i) EUR
1,250,000 (in words: Euro one million two hundred and fifty
thousand) (the "EXTENDED TAX ESCROW") and (ii) the amount of claims
notified in accordance with Section 5.6.4 prior to 31 March 2009;
(3) the Extended Tax Escrow (including interest) ( the "EXTENDED TAX
ESCROW FUNDS") shall be retained in the Warranty Escrow Account
until 30 June 2010 (the "EXTENDED TAX ESCROW PERIOD") solely to
secure claims of the Purchasers under Section 9.1 (Tax Indemnity).
At the end of the Extended Tax Escrow Period (subject to Sections
5.6.5 to 5.6.7 below) the Seller and the Purchasers shall issue
joint written instructions to the escrow agent to release the
Extended Tax Escrow Funds to the Seller.
5.6.4 The Purchasers shall not be obligated to issue written instructions
pursuant to Section 5.6.3 above to the extent that they have:
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(1) notified the Seller prior to the expiry of the Initial Warranty
Escrow Period or, in the case of claims under Section 9.1 only, the
Extended Tax Escrow Period of any Guarantee Claim or other claim
under this Agreement (such notice to include a statement of the
facts upon which the Guarantee Claim or other claim is based and
the amount of the Guarantee Claim or the other claim to the extent
that such amount has been determined at the time when such notice
is given) and such Guarantee Claim or other claim has not been
waived by the Purchasers or settled; or
(2) commenced arbitration proceedings to pursue such Guarantee Claim or
other claim within six (6) months of such notification pursuant to
(1) above, unless any such Guarantee Claim or other claim has been
waived by the Purchasers or settled.
For the avoidance of doubt, the Purchasers' right not to issue written
instructions pursuant to Section 5.6.3 above shall be limited, in the
case of (1) above, to the amount notified to the Seller and, in the case
of (2) above, to the amount claimed in such arbitration proceedings.
5.6.5 To the extent that any Guarantee Claim or other claim shall have been
agreed by the Parties or determined by a final and binding award of the
competent arbitration tribunal, the Purchasers and the Seller shall
immediately upon such agreement or determination issue joint written
instructions to the escrow agent to pay the amount of such Guarantee
Claim or other claim from the Warranty Escrow Account to the Purchasers.
5.6.6 In the event of a Purchase Price Adjustment pursuant to Section 5.3.1 (2)
above, an amount equal to such Purchase Price Adjustment shall be
released from the Warranty Escrow Account upon determination of the
amount of such Purchase Price Adjustment pursuant to Section 6, and any
such amount shall first be released from the Warranty Escrow Funds. The
Purchasers and the Seller shall immediately issue joint written
instructions to the Escrow Agent to pay such amount equal to such
Purchase Price Adjustment from the Warranty Escrow Account to the
Purchasers.
5.6.7 Each of the Purchasers and the Seller undertakes to issue instructions
for payment from the Warranty Escrow Account of the amounts due under the
above sections without undue delay.
5.6.8 Subject to Section 8.4, any rights and / or obligations of the Purchasers
under this Section 5.6 do not limit or restrict any claims of the
Purchasers under this Agreement and the Warranty Escrow Funds shall be
held only as security and collateral for any claims of the Purchasers
under this Agreement (and in the case of the Extended Tax Escrow Funds
solely for claims under Section 9.1). The Purchasers shall have the right
to assert
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claims under this agreement against the Warranty Escrow Fund or the
insurance referred to in Section 8.4.1 at their discretion.
5.7 INDIA ESCROW
If (a) Toyoda has not duly (i) exercised the Toyoda Pre-emptive Right,
(ii) rejected the proposal to waive the Toyoda Pre-emptive Right or,
(iii) refused its consent to the transfer of the Seller's Shares in MAP
India, and (b) Toyoda is not barred under the MAP India JVAgreement and
the shareholders' agreement / articles / statutes of MAP India from (i)
exercising the Toyoda Pre-emptive Right or (ii) denying its consent to
the contemplated share transfer by the Closing Date, then the Seller, the
Purchaser 1 and the Escrow Agent shall enter into the escrow account
agreement substantially in the form attached hereto as Annex 5.7 ("INDIA
ESCROW AGREEMENT"), and Purchaser 1 shall pay an amount equal to the MAP
India Price into the escrow account under the India Escrow Agreement
("INDIA ESCROW ACCOUNT"). The funds in the India Escrow Account shall be
held on the following terms:
(1) The MAP India Price shall be paid by Purchaser 1 by way of release
of the India Escrow Account. The India Escrow Account shall be
released as set out in Section 14.2.2 promptly after (i) the
consent to the transfer of the Seller's Shares in MAP India to
Purchaser 1 and the waiver of its right of pre-emption have been
obtained from Toyoda, or (ii) the relevant waiting periods have
expired, whatever occurs first; provided that the amount of any
dividend or other distributions to the Seller after 31 December
2006 shall result (i) in a EUR for EUR reduction of the MAP India
Price, and (ii) an amount equaling such reduction shall be released
from the India Escrow Account to Purchaser 1.
(2) Any fees of the escrow agent or other charges in connection with
the India Escrow Account shall be charged to the India Escrow
Account.
(3) Any interest generated on the India Escrow Account (subject to any
deduction of tax at source) shall be credited to the India Escrow
Account. The Seller and Purchaser 1 shall agree jointly the
interest periods applying to the funds contained in the India
Escrow Account from time to time; in the absence of such agreement
the interest period shall be (i) the calendar month (Monatsgeld)
except (ii) if the period until disbursement of the India Escrow is
due is less than a calendar month, in which case it shall be one
day (Tagesgeld). At the Closing, the Seller and the Purchaser 1
shall authorize and instruct the escrow agent holding the India
Escrow Account to reinvest such funds accordingly.
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(4) If Toyoda exercises its Pre-emptive Right or refuses to consent to
the transfer of the Seller's Shares in MAP India to Purchaser 1,
the India Escrow shall be immediately released to Purchaser 1.
(5) Each of the Purchaser 1 and the Seller undertakes to issue
instructions for payment from the India Escrow Account of the
amounts due under the above sections without undue delay.
5.8 CHINA ESCROW
If the Purchaser 1 has issued the China Selling Note, then the Seller,
the Purchaser 1 and the Escrow Agent shall enter into the escrow account
agreement substantially in the form attached hereto as Annex 5.8 (the
"CHINA ESCROW AGREEMENT"), and the Purchaser 1 shall pay an amount equal
to the MAP China Price into the escrow account under the China Escrow
Agreement (the "CHINA ESCROW ACCOUNT"). The funds in the China Escrow
Account shall be held on the following terms:
(1) The MAP China Price shall be paid by Purchaser 1 by way of release
of the China Escrow Account to Seller promptly after any of the
China Approvals has been duly refused in writing.
(2) The MAP China Price shall be repaid by Seller by way of release of
the China Escrow Account to the Purchaser 1 promptly after all of
the China Approvals have been duly received in writing and title in
the MAPS China Interest has been transferred to the Seller and the
Purchaser 1 shall settle the purchase price owed by the Seller to
MAPS Italy for the MAPS China Interest.
(3) The stipulations set forth in section 5.7 (2), (3) and (5) shall
apply accordingly to the China Escrow Account.
5.9 ALLOCATION OF PURCHASE PRICE
The Seller and the Purchasers agree that the Purchase Price shall be
allocated to the Shares and shall be paid by the individual Purchasers as
set out in Annex 5.9.
5.10 SETTLEMENT OF INTRA-GROUP INDEBTEDNESS
The Parties agree that upon payment at Closing of the payments under
Sections 5.2.3(5) and 5.2.3(7) and any relevant adjustments under Section
5.3.1 the Seller and its Affiliates, on the one hand, and the Target
Group Companies, on the other hand, shall have, and shall be treated for
all purposes as having, fully discharged any financial indebtedness as
existing between them. In relation to (i) the Seller and its Affiliates
and (ii) the Target Group Companies, the following shall apply:
(1) If and to the extent the Purchasers settle a liability of a Target
Group Company towards the Seller or one of its Affiliates, the
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Purchasers shall have a compensation claim against the Target Group
Company, the consent of which hereto shall be provided prior to
Closing.
(2) If and to the extent the receivable of a Target Group Company
towards the Seller or one of its Affiliates shall be settled, the
Purchasers shall be entitled to receive the benefit of such
receivable on the basis of a consent of the Target Group Company
which shall be provided prior to Closing.
6. DETERMINATION OF THE FINAL PURCHASE PRICE
6.1 ACCOUNTING DOCUMENTS
Within 60 Business Days after the Closing, the Seller shall deliver to
the Purchasers (i) a Draft Closing Date Balance Sheet (as defined below)
and (ii) a calculation of the final Purchase Price ((i) + (ii) together
the "ACCOUNTING DOCUMENTS") prepared in accordance with the provisions in
this Section 6.
6.2 DRAFT CLOSING DATE BALANCE SHEET
The Seller, and after the Closing the Purchasers, shall instruct and
cause the management of the Target Group Companies to provide the
necessary data to the Seller to establish a pro forma consolidated
balance sheet of the Target Group Companies in the form attached hereto
as Annex 6.2 as at the Closing Date or (if the Closing takes place
pursuant to Section 4.1(b)) as of the last day of the calendar month
immediately preceding the Closing Date (hereinafter referred to as the
"DRAFT CLOSING DATE BALANCE SHEET"). The Draft Closing Date Balance Sheet
shall be prepared in accordance with US-GAAP, in good faith, consistently
with prior management accounts practice of the Target Group Companies.
6.3 REVIEW
The Purchasers shall be entitled to review the Draft Closing Date Balance
Sheet or have it reviewed by an auditor of their choice.
6.4 NO OBJECTION
The Draft Closing Date Balance Sheet shall become the Closing Date
Balance Sheet, and together with the calculation of the final Purchase
Price shall become the final Accounting Documents and shall be binding on
the Parties, if the Purchasers or its auditors do not notify the Seller
within twenty (20) Business Days from receipt of the draft Accounting
Documents that any of them has any objections to such drafts.
6.5 OBJECTIONS
In the event that the Purchasers or its auditors notify the Seller within
the period specified in Section 6.4 that any of them has any objections
to such
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drafts, specifying in writing each individual item and the reasons for
the objections thereto, the Seller and the Purchasers shall then attempt
to reach an agreement on the adjustments to such draft Accounting
Documents (if any) within twenty (20) Business Days from receipt of such
objections.
6.6 SETTLEMENT
If the Seller and the Purchasers reach an agreement on the items in
dispute within twenty (20) Business Days from receipt of such objections
pursuant to Section 6.5, such agreement shall be incorporated into the
draft Accounting Documents. The Draft Closing Date Balance Sheet shall
upon such incorporation become the final Closing Date Balance Sheet and
the calculation of the Purchase Price incorporating such agreed changes
shall become the Purchase Price and the Accounting Documents (so agreed)
shall be binding on the Parties.
6.7 EXPERT REFEREE PROCEEDINGS
6.7.1 If no agreement has been reached within the twenty (20) Business Days
referred to in Section 6.6, the items in dispute shall be referred to
expert referee proceedings (Schiedsgutachterverfahren).
6.7.2 The Seller and the Purchasers shall jointly appoint one expert referee
(Schiedsgutachter) ("EXPERT") no later than ten (10) Business Days after
the expiry of the twenty (20) Business Days period referred to in Section
6.6.
6.7.3 With regard to the objections raised in accordance with Section 6.5 such
Expert shall review whether the principles mentioned in Sections 6.1 and
6.2 have been observed and shall be jointly instructed to deliver a
written opinion within fifteen (15) Business Days after its appointment,
which opinion shall be final and binding on the Parties. The opinion
shall be incorporated in the draft Accounting Documents which, upon such
incorporation, shall become the final Accounting Documents and shall
become binding on the Parties.
6.7.4 If the Seller and the Purchasers do not reach an agreement on the
appointment of the Expert within a period of ten (10) Business Days after
the expiry of the twenty (20) Business Days period referred to in Section
6.6, then the Expert shall be appointed upon the request of the Seller
and / or the Purchasers, as the case may be, by the speaker of the board
(Xxxxxxxx des Vorstands) of the Institut der Wirtschaftsprufer in
Deutschland e.V., Dusseldorf. Such Expert shall work with an
international accounting firm, which shall not have advised a Party on
the transaction contemplated by this Agreement.
6.7.5 The Expert shall decide upon the final allocation of its costs and
expenses, taking into account the decision and the original positions and
motions of
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the Seller and the Purchasers. All costs and expenses of the Expert and
the proceedings hereunder shall be borne by the Seller and the Purchasers
as decided by the Expert. Each of the Seller and the Purchasers shall
bear its own costs and the costs of its advisors and counsel.
6.8 ACCESS TO INFORMATION
The Seller and the Purchasers and / or their respective auditors shall
have full access to management, employees, accounts and other financial
information of the Target Group Companies and working papers of the
Target Group Companies' auditor as is reasonably necessary for the
purposes of this Section 6. The Seller and the Purchasers shall procure
that the Target Group Companies grant such access and that the Target
Group Companies' auditor be released from its professional
confidentiality obligation vis-a-vis the Target Group Companies towards
the Seller and the Purchasers and their respective auditors and that the
Target Group Companies authorize and instruct the Target Group Companies'
auditor to grant unlimited access to the other auditors with respect to
its working papers and related documentation. The Seller and the
Purchasers shall further procure (and shall cause the Target Group
Companies to procure) that the Target Group Companies' auditor grant
unlimited access to the other auditors also with respect to working
papers and audit materials for the previous fiscal years of the Target
Group Companies.
7. SELLER'S GUARANTEES
The Seller hereby guarantees to the Purchasers by way of an independent
promise of guarantee in accordance with Section 311 para. 1 of the German
Civil Code (selbstandiges Garantieversprechen i. S. d. Section 311 Abs. 1
BGB) (hereinafter referred to as the "GUARANTEES") that the statements
set forth hereinafter are true, accurate, complete and not misleading as
of the Signing Date and as of the Closing Date, it being understood that
such statements shall not constitute quality guarantees concerning the
object of the purchase within the meaning of Section 443 and 444 German
Civil Code (Garantie fur die Beschaffenheit der Sache). In the unlikely
event that the provisions of Sections 7 through 11 setting out the scope
and limitations of the Seller's liability are, contrary to the intention
and explicit understanding of the Parties, regarded and construed as
quality guarantees concerning the object of the purchase, and the
limitations of the Seller's liability contained herein are therefore
found wholly or partially invalid, the Purchasers hereby waive the right
to assert claims going beyond the limitations of liability provided for
herein. The Seller accepts such waiver.
7.1 ENFORCEABILITY, NO CONFLICT
This Agreement constitutes the legal, valid, and binding obligation of
the Seller. As of the Closing Date the Seller will not be required to
obtain any
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government approval in connection with the execution and delivery or
performance of this Agreement by the Seller other than the approvals
specifically referred to in this Agreement. As of the Closing Date
neither the execution of this Agreement nor the consummation or
performance of any of the transactions contemplated thereby will directly
or indirectly violate the applicable constitutional documents or by-laws
of the Seller.
7.2 EXISTENCE AND CAPITALIZATION OF COMPANIES, OWNERSHIP OF SHARES
7.2.1 The Target Group Companies are duly organized and validly existing under
the laws of the place of their incorporation. They have, and had at the
relevant time, the corporate power and authority to conduct their
business as it has been conducted and will be conducted up to Closing.
7.2.2 The statements made in the Recitals and in Section 2 of this Agreement
with respect to the Seller, and the Target Group Companies (in respect of
MAP India only with respect to the Seller's Shares in MAP India) are
true, accurate and complete and not misleading in every material respect.
The share capital of each of the Target Group Companies is fully paid in,
and no repayments or refunds, neither openly nor concealed, have been
made and the shares are non-assessable (keine Nachschusspflicht).
7.2.3 The Seller has free and unencumbered title to the Shares and the
unrestricted power and authority to dispose of the Shares
(uneingeschrankte Verfugungsmacht). No pledges, assignments for security
purposes, options, pre-emption rights, shareholders' agreements,
consortium agreements, trust, sub-participation rights or other
agreements, undertakings or third party rights exist with regard to the
Shares except as referred to in Section 2. Upon implementation of this
Agreement the Purchasers shall obtain free and unencumbered title to the
Shares.
7.3 BANKRUPTCY OR JUDICIAL COMPOSITION PROCEEDINGS
No bankruptcy, insolvency or judicial composition proceedings have been
initiated or applied for under any applicable law against the Seller and
/ or any of the Target Group Companies. To the Seller's Knowledge, there
exist no circumstances which would justify the opening of such
proceedings or the avoidance, challenge or rescission of this Agreement,
whether under the German Insolvency Code or other similar legislation in
other jurisdictions.
7.4 ENTERPRISE AGREEMENTS
Save as referred to in Section 2.1.5, the Target Group Companies are not
bound by any domination and profit and loss pooling agreement
(Beherrschungs- und Gewinnabfuhrungsvertrag) or any other agreement
within the meaning of Section 291 et seq. of the German Stock Corporation
Act or any business management agreement
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(Betriebsfuhrungsvertrag) and have not entered into any silent
partnership agreement (stille Beteiligung).
7.5 MATERIAL AGREEMENTS
Except for the agreements and commitments listed or disclosed in Annex
7.5, the Target Group Companies are not a party to any of the following
agreements where the primary obligations (Hauptpflichten) have not been
completely fulfilled ("MATERIAL AGREEMENTS"):
(1) Loan and credit agreements;
(2) Agreements regarding Material Intellectual Property Rights and
Know-How;
(3) Agreements entered into in the three (3) years prior to Closing
Date relating to the acquisition or disposal of any business;
(4) Lease, leasehold or hereditary building rights with annual lease
payments in excess of EUR 250,000;
(5) Construction or acquisition of fixed assets or other individual
capital expenditure in excess of EUR 250,000;
(6) Contracts or other agreements to dispose of assets outside the
regular course of business in excess of EUR 250,000;
(7) Contracts providing for payment obligations in excess of EUR
250,000 that would terminate due to the transaction under this
Agreement;
(8) Supply contracts with an annual value in excess of EUR 2,000,000;
(9) Customer contracts with an annual value in excess of EUR 5,000,000.
7.6 COMPLIANCE WITH MATERIAL AGREEMENTS
7.6.1 The Target Group Companies are in compliance with the Material Agreements
save where non-compliance does not have a Material Adverse Effect.
7.6.2 No written notices or other written communications have been received
terminating or expressly threatening termination of any of the Material
Agreements; the Target Group Companies have not given or received any
written notice of ordinary or extraordinary termination to or from any
counterparty with respect to any of the Material Agreements.
7.7 LARGEST CUSTOMERS AND LARGEST SUPPLIERS
Annex 7.7 contains a complete and correct list of the 10 largest
customers and the 10 largest suppliers of the Target Group Companies
(taken as a whole), indicating in each case their approximate business
volume for the
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fiscal year ended on 31 December 2006. Neither any of the Target Group
Companies nor the Seller have received any written notice or other
written communication from any of the customers or suppliers terminating
or expressly threatening termination of any of the customer or supply
arrangements with suppliers and / or customers.
7.8 MATERIAL INTELLECTUAL PROPERTY RIGHTS
7.8.1 The Target Group Companies hold free and unencumbered title to all
registered intellectual property rights listed in Annex 7.8.1 (Part A)
and are licensees of those registered intellectual property rights listed
in Annex 7.8.1 (Part B) (together, the "MATERIAL INTELLECTUAL PROPERTY
RIGHTS"). The Material Intellectual Property Rights include all the
registered intellectual property rights which the Target Group Companies
need to carry on the Target Group Companies' businesses as currently
conducted. To Sellers Knowledge, the Material Intellectual Property
Rights owned by the Target Group Companies have been duly maintained in
all material respects and there are no challenges thereto by any third
party (including, without limitation, registration authorities) which
have a Material Adverse Effect. To the Seller's Knowledge, none of such
Material Intellectual Property Rights has been infringed or violated by
any third party where such infringement has a Material Adverse Effect. To
the Seller's Knowledge, and excluding the IP License Agreements, no
exclusive licenses of any Material Intellectual Property Rights owned by
the Target Companies have been granted to any third party (other than
customers, developers or similar partners in the ordinary course of
business).
7.8.2 To Seller's Knowledge, none of the Target Companies has infringed or
violated or currently infringes or violates in its respective business
operations any intellectual property rights of third parties in such a
manner as to have a Material Adverse Effect.
7.8.3 To Seller's Knowledge, the Target Group Companies in Germany have each
exercised all rights under the German Act on Employee Inventions
(Arbeitnehmererfindungsgesetz) or similar legislation in other
jurisdictions.
7.8.4 The Target Companies own, or have acquired a valid right or license to
use, all servers, material network components and material software
(excluding for the avoidance of doubt hardware which is available "off
the shelf", peripherals or "shrink-wrap"-type software) on which
significant core business processes are operated (including ERP and CAD)
(hereinafter collectively referred to as the "INFORMATION TECHNOLOGY")
and which the Target Group Companies need in order to carry on their
businesses as presently conducted.
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7.8.5 To the Seller's Knowledge, the Target Group Companies have access to and
are able to use without any restriction all know-how which the Target
Group Companies need and currently use in their business as presently
conducted (hereinafter referred to as "KNOW-HOW"), save where such
restriction or the absence of access or use would not have a Material
Adverse Effect, and except for restrictions or usage rights assumed or
granted (in either case expressly or by implication) for or to customers,
developers or other similar partners in the ordinary course of business.
7.8.6 The consummation of the transactions contemplated under this Agreement
will not result in a loss or impairment of the right to own or use any of
the Material Intellectual Property Rights, Information Technology and /
or Know-How in such a manner as to have a Material Adverse Effect.
7.9 LITIGATION
7.9.1 Except as disclosed in Annex 7.9.1, no Target Group Company is involved
in current judicial, arbitration or administrative proceedings with a
value in dispute exceeding EUR 100,000 in the individual case, or in the
aggregate in the event that several proceedings regard the same item or
closely related items. The Target Group Companies have not received any
written notice or any other written communication by which proceedings
have been expressly threatened.
7.9.2 Save as disclosed in Annex 7.9.2, no product warranty or product
liability claims have been asserted in writing or, to the Seller's
Knowledge, expressly threatened in writing against the Target Group
Companies in the three year period prior to the date of this Agreement,
other than routine customer warranty claims with a value of less than EUR
250,000 in the individual case, or in the aggregate in the event that
several customer warranty claims relate to the same item or closely
related items.
To the Seller's Knowledge and save as disclosed in Annex 7.9.2, the
Target Group Companies have neither manufactured, designed, sold or
delivered any product or service in a manner which could reasonably be
expected to give rise to product liability or warranty or other claims,
nor are they reasonably expected to have any obligation or liability
based on product warranty or product liability, other than routine
customer warranty claims with a value of less than EUR 250,000 in the
individual case, or in the aggregate in the event that several customer
warranty claims relate to the same item or closely related items.
7.10 TAX RETURNS, ETC.
7.10.1 The Target Group Companies have (or will have) duly and timely filed, in
accordance with all applicable laws, all tax returns, statements, reports
and forms required to be filed with respect to any tax period
(Veranlagungszeitraum) ending prior to or on the Closing Date. To the
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Seller's Knowledge such returns, statements, reports and forms were, when
filed, true and correct in all material respects. All Taxes shown as
owing thereon or any tax assessment relating to any tax periods ending
prior to or on the Closing Date have been timely and fully paid, save
where disputed in good faith. There are no tax-related audits, actions,
proceedings, investigations, claims or assessments pending, proposed or
threatened against or with respect to the Target Group Companies. To the
Seller's Knowledge, the Target Group Companies have not received any tax
ruling or entered into any written and legally binding agreement nor are
they currently in negotiation to enter into any such agreement with any
Tax Authority which would affect the tax situation of the Target Group
Companies in any period ending after the Closing Date.
7.10.2 Section 7.10.1 shall apply to all Taxes within the meaning of Section 9.1
of this Agreement.
7.11 COLLECTIVE LABOR AGREEMENTS
7.11.1 Annex 7.11.1 contains a complete and correct list of all collective
bargaining agreements (including firm wide collective bargaining
agreements) and works agreements valid and in force at the Target Group
Companies.
7.11.2 Except as listed in Annex 7.11.2, there exist no (1) employee agreements
that contain benefit or incentive plans that may be triggered by change
of control, (2) limitations to terminate employment agreements or (3)
obligations to make specific investment to guarantee a certain number of
employees.
7.11.3 The Target Group Companies have complied with the agreements listed in
Annexes 7.11.1 and 7.11.2 save where non-compliance would not have a
Material Adverse Effect.
7.11.4 Other than statutory pension rights (Gesetzliche Rentenversicherung), no
pension or retirement schemes or commitments with any managing directors,
similar executives or employees have been made or promised by the Target
Group Companies, except for those listed in Annex 7.11.1 or Annex 7.11.4.
7.12 LABOR RELATIONS
7.12.1 To Seller's Knowledge, no strikes are ongoing or threatened.
7.12.2 Since 1 January 2006 no government agency, administrative tribunal or
arbitrator has issued a judgment or order with respect to the employment
or labor practices of the Target Group Companies which has a Material
Adverse Effect.
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7.13 FINANCIAL STATEMENTS
7.13.1 The audited financial statements for the financial year ending 31
December 2006 for the Target Group Companies other than MKU GmbH (the
"FINANCIAL STATEMENTS") (i) have been prepared in accordance with
generally accepted accounting principles under the laws of the respective
jurisdiction of incorporation consistently applied with past practice,
maintaining consistent accounting and valuation principles, methods and
rules; and (ii) fairly represent the assets and liabilities
(Vermogenslage), financial condition (Finanzlage) and results of
operation (Ertragslage) of each of the Target Group Companies.
7.13.2 The management accounts for the period from 1 January 2007 to 30 April
2007 as provided in the Data Room were prepared in accordance with
US-GAAP, in good faith, consistently with prior management accounts
practice of the Target Group Companies.
7.13.3 MAPS Belarus does not have any liabilities, except for insignificant
liabilities incurred in connection with its establishment.
7.14 CONDUCT OF BUSINESS
7.14.1 From 1 January 2007 through the Closing Date, the business operations of
the Target Group Companies have been and will be conducted exclusively in
the ordinary course of business substantially in the same manner as
before.
7.14.2 The Target Group Companies have made all capital and restructuring
expenditures for 2006 and 2007 as set forth in Annex 7.14.2.
7.15 COMPLIANCE WITH LAWS
The Target Group Companies are currently in compliance with all
applicable laws, judgments, decrees, licenses and permits and other
rulings or decisions by any court, arbitration tribunal or other
applicable authority with respect to the conduct and continuation of
their present business operations with respect to occupational health and
safety regulations and industry-specific regulatory norms, save where
failure to do so would not have a Material Adverse Effect.
7.16 REAL PROPERTY
7.16.1 Annex 7.16.1 contains a complete and correct list of all real property
(Grundstucke) and rights similar to real property (grundstucksgleiche
Rechte), including, without limitation, hereditary building rights
(Erbbaurechte), owned by the Target Group Companies ("LISTED REAL
PROPERTY RIGHTS").
Annex 7.16.1(b) is a complete and correct set of excerpts from the land
registers (Grundbucher) and similar registers, including, without
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limitation, hereditary building registers (Erbbaugrundbucher), for each
of the Listed Real Property Rights, provided to Purchasers by Seller.
No agreements or other legal transactions have been entered into which
would constitute any obligation for the Target Group Companies to effect
any conveyance, agreement "in rem" or consent with respect to any of the
Listed Real Property Rights which would change the position set out in
Annex 7.16.1(b).
To Seller's Knowledge, the Target Group Companies have not received any
written notice or other written communication from a relevant authority
expressly challenging or revoking the current use of any of the Listed
Real Property Rights.
7.16.2 Annex 7.16.2 contains a complete and correct list of all lease agreements
(Mietvertrage) or equivalent interests in land and buildings used by the
Target Group Companies (the "LEASES"). The Target Group Companies have
not received any written notice or other written communication pursuant
to which any of the Leases has been terminated or is expressly threatened
to be terminated.
7.17 OTHER FIXED ASSETS, CURRENT ASSETS
The Target Group Companies own or have a right to use all fixed assets
(Anlagevermogen) and all tangible current assets (Umlaufvermogen),
including the inventory (Vorrate) required for the conduct of the
business as currently conducted and unless divested in the ordinary
course of business. Such fixed assets are not charged or otherwise
encumbered with third party rights, except for pledges (Pfandrechte),
security assignments (Sicherungsabtretungen), transfers for security
purposes (Sicherungsubereignungen), retention of title rights
(Eigentumsvorbehalte) or statutory liens incurred in the ordinary course
of business, or as will be released at Closing. This Section 7.17 shall
not apply or be construed or deemed to apply to any classes or types of
assets falling under Sections 7.8. (Intellectual Property Rights) or 7.16
(Real Estate).
7.18 INSURANCES
Annex 7.18 contains a complete and correct list of all insurance policies
taken out by, or for the benefit of, the Target Group Companies or their
assets or business operations.
7.19 LICENSES AND PERMITS
Each Target Group Company holds all licenses and permits required for the
conduct and continuation of its present business operations, save where
the failure to do so would not have a Material Adverse Effect.
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7.20 PUBLIC GRANTS
Annex 7.20 completely and accurately lists all capital or loan-related
subsidies, allowances, aids and other public grants (but excluding tax
incentives or concessions available to any comparable business) in excess
of EUR 250,000 (two hundred and fifty thousand Euros) in the individual
case or a series of related cases awarded to the Target Group Companies
within the past five (5) years specifying the amounts of such grants.
Save as set out in Annex 7.20 the Target Group Companies have not claimed
or received any payment under any suretyship granted by any governmental
or other public authority in excess of EUR 250,000 (two hundred and fifty
thousand Euros) in the individual case or a series of related cases.
7.21 ENVIRONMENT
Except as disclosed in Annex 7.21, to the Seller's Knowledge on the
Signing Date, there is no Environmental Contamination which on Listed
Real Property Rights or on the premises subject to the Leases, and there
are no patent indications for the existence of Environmental
Contamination. Except as disclosed in Annex 7.21, to the Seller's
Knowledge on the Signing Date, no Environmental Contamination exists on
or emanates from neighboring property which exists due to an emanation
from the land, the buildings or facilities currently in use (above or
below ground) on Listed Real Property Rights or on the premises subject
to the Leases.
7.22 MAPS CHINA
7.22.1 To the Seller's Knowledge, Shanghai SAIC-Metzeler, SAIC-Metzeler Sealing
Systems (Huai'an) Co. Ltd. and SAIC-Metzeler Sealing Systems (Guangzhou)
Co. Ltd. are duly organized and validly existing under the laws of the
Peoples' Republic of China. They have, and had at the relevant time, the
corporate power and authority to conduct their business as it has been
conducted and will be conducted up to Closing.
7.22.2 To the Seller's Knowledge, the statements made in the Recitals and in
Section 2 of this Agreement with respect to the MAPS China Interest and
Shanghai SAIC-Metzeler's shares in SAIC-Metzeler Sealing Systems
(Huai'an) Co. Ltd. and SAIC-Metzeler Sealing Systems (Guangzhou) Co. Ltd.
are true, accurate and complete and not misleading in every material
respect. To the Seller's Knowledge, the share capital of each of Shanghai
SAIC-Metzeler, SAIC-Metzeler Sealing Systems (Huai'an) Co. Ltd. and
SAIC-Metzeler Sealing Systems (Guangzhou) Co. Ltd. is fully paid in, and
no repayments or refunds, neither openly nor concealed, have been made
and the shares are non-assessable (keine Nachschusspflicht).
7.22.3 MAPS Italy has free and unencumbered title to the shares in Shanghai
SAIC-Metzeler and the unrestricted power and authority to dispose of the
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shares (uneingeschrankte Verfugungsmacht). To the Seller's Knowledge, no
pledges, assignments for security purposes, options, pre-emption rights,
shareholders' agreements, consortium agreements, trusts,
sub-participation rights or other agreements, undertakings or third party
rights exist with regard to the shares in Shanghai SAIC-Metzeler, except
as referred to in Section 2.
7.22.4 To the Seller's Knowledge, the audited financial statements for the
financial year ending 31 December 2006 for Shanghai SAIC-Metzeler have
been prepared in accordance with generally accepted accounting principles
under the laws of the respective jurisdiction of incorporation
consistently applied with past practice, maintaining consistent
accounting and valuation principles, methods and rules; and (ii) fairly
represent the assets and liabilities (Vermogenslage), financial condition
(Finanzlage) and results of operation (Ertragslage) of Shanghai
SAIC-Metzeler.
7.22.5 To the Seller's Knowledge, there is (i) no non-compliance of Shanghai
SAIC-Metzeler with any applicable law, judgment, decree, license and / or
permits and other rulings or decisions by any court, arbitration tribunal
or other applicable authority with respect to the conduct and
continuation of its present business operations with respect to
occupational health and safety regulations and industry-specific
regulatory norms, and (ii) no lack of any license or permit required for
the conduct and continuation of its present business operations, that
could in either case trigger a complete or partial shut-down of its
business operations.
8. REMEDIES
8.1 RESTITUTION IN KIND; DAMAGES
8.1.1 If any of the Guarantees set forth in Section 7 hereof is not true,
accurate and complete in every respect or is misleading in any respect,
the Purchasers shall give written notice of such breach of Guarantee to
the Seller as soon as reasonably practical. The Seller shall put the
Purchasers or (in the Purchasers' absolute discretion) the relevant
Target Group Company within a period of thirty (30) Business Days after
receipt of such notice by the Purchasers in such position as the
Purchasers or the relevant Target Group Company would have been in had
the Guarantees given by the Seller been true, accurate and complete in
every respect and not misleading in any respect (restitution in kind;
Naturalrestitution). For the avoidance of doubt, any failure of the
Purchasers to notify the Seller as described above, shall not forfeit any
of the Purchasers' rights, subject to Section 10.3.2 below.
8.1.2 If and to the extent the Seller fails to provide restitution in kind in
accordance with Section 8.1.1 hereof or restitution in kind is not
possible, the Purchasers shall have the right to demand that the Seller
pay monetary
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damages to the Purchasers (or, in the Purchasers' absolute discretion, to
the relevant Target Group Company) in such amount as may be necessary to
put the Purchasers (or, in the Purchasers' absolute discretion, the
relevant Target Group Company) in such position as it would have been in
had the Guarantees given by the Seller been true, accurate and complete
in every respect and not misleading in any respect.
8.1.3 To the extent that any guarantee referring to any of the Target Group
Companies in which the Seller holds as of the Closing Date (directly or
indirectly) less than 100 per cent is inaccurate, the Seller shall only
be liable to the Purchasers for a damage pro rata to the Seller's equity
shareholding in such Target Group Company as of the Signing Date.
8.1.4 Payments made by the Seller under Sections 8 and 9 shall constitute
between the Seller and the Purchasers a reduction of the Purchase Price
and, to the extent that these payments are made directly to the relevant
Target Group Company, shall constitute a capital contribution (Einlage)
by the Purchasers to the relevant Target Group Company.
8.2 DE MINIMIS, BASKET
No liability shall arise for the Seller under this Agreement unless (i)
the individual claim exceeds EUR 100,000, whereby various smaller claims
based on the same or related issue shall be regarded as one claim for
this purpose ("DE MINIMIS CLAIMS") and (ii) the aggregate amount of all
De Minimis Claims exceeds EUR 1,000,000 (one million Euros) ("BASKET").
If the Basket is exceeded, the Purchasers can only claim the exceeding
amount (Freibetrag). The provisions in this Section 8.2 shall not apply
to claims under Sections 7.2.3, 9 and 12.2.
8.3 CAP
Liability of the Seller under this Agreement shall not exceed EUR
3,500,000 (Euros three million five hundred thousand) (hereinafter
referred to as the "LIABILITY CAP"), with the exception of claims of the
Purchasers arising from a breach of the Seller's Guarantees contained in
Section 7.2.3 in respect of which the Seller shall be liable up to an
amount equal to the Purchase Price (as adjusted pursuant to Section 5.3).
For the avoidance of doubt, the Liability Cap shall not apply to the
Purchasers' claims under Section 7.2.3. For the avoidance of doubt, the
Parties hereby declare that the Liability Cap shall not restrict the
right of the Purchasers to assert claims under the guarantee insurance as
set forth in Section 8.4 below.
8.4 GUARANTEE INSURANCE
8.4.1 The Seller and the Purchasers have, in addition to the Warranty Escrow,
procured for the benefit of the Purchasers insurance cover for Guarantee
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claims and other claims in an amount of EUR 7,000,000. A EUR 500,000
deductible under such insurance cover will be funded from the Warranty
Escrow. The premium for such insurance in the amount of EUR 170,000 (plus
insurance tax and reasonable underwriter's fees and expenses) shall be
paid by the Seller.
8.4.2 The Purchasers shall have the right to assert claims under this agreement
against the Warranty Escrow Fund or the insurance referred to in Section
8.4.1 at his discretion, except in the case of claims for breach of
Sections 7.9.2 and 7.21 for which Seller shall not be liable and the
Purchasers' sole remedy shall be as provided under the insurance cover
under Section 8.4.1.
8.4.3 Except for the Seller's Guarantees contained in Section 7.2.3, the
Purchasers' Guarantee Claims, indemnity and other claims under this
Agreement shall be settled only out of the Warranty Escrow and/or the
insurance provided in accordance with Section 8.4.1, without further
recourse against the Seller or, for the avoidance of doubt, its
Affiliates.
8.5 DISCLOSURE
Except as otherwise provided in this Agreement, a claim for a breach of
Guarantees shall not exist, if the matter to which the claim relates was
known by the Purchasers or its representatives, as listed in Annex
8.5(a), as of the Signing Date. Purchasers and / or Purchasers'
representatives shall be deemed to have knowledge of all matters
disclosed in (i) the Annexes to this Agreement, (ii) the Disclosure
Letter prepared by the Seller contained in Annex 8.5(b), and (iii) the
Data Room to the extent that Purchasers were, or in the exercise of due
care should have been, aware of the risk to which such claim relates from
review of such disclosure.
For evidence purposes, a set of four CDs with the contents of the Data
Room has been prepared. It will be given to the notary public as escrow
agent on the basis of an escrow agreement to be agreed upon by the
Parties and the notary public.
8.6 KNOWLEDGE
For the purposes of this Agreement, any fact or circumstance shall be
deemed to exist to the "KNOWLEDGE" of the Seller whenever any individual
listed in Annex 8.6 is, was or, after making due inquiry as a prudent
business man would reasonably expected to have been, consciously aware
(Kennen oder Kennenmussen) of such fact or circumstance.
8.7 EXCLUSION OF FURTHER REMEDIES
The Seller and the Purchasers agree that the remedies the Purchasers or
the Target Group Companies may have against the Seller for a breach of
Guarantees set forth in this Agreement are solely governed by this
Agreement, and the remedies for a breach of Guarantees set forth in
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Section 8 shall be the exclusive remedies available to the Purchasers or
the relevant Target Group Company, except as provided by mandatory law.
9. INDEMNITIES
9.1 TAX INDEMNITY
9.1.1 The Seller shall indemnify and hold harmless the Purchasers or, at the
Purchasers' absolute discretion, the Target Group Companies from and
against any and all Taxes unpaid that are imposed on and payable by the
Target Group Companies attributable to the period up to and including the
Closing Date, provided that the Purchasers have made a claim for
indemnification within three years following the Closing Date (the "TAX
INDEMNITY PERIOD") or have provided notice within the Tax Indemnity
Period to the Seller of the audit by the pertinent Tax Authority which
resulted in the claim of assessment of such Taxes during the Tax
Indemnity Period.
9.1.2 "TAX" or "TAXES" shall mean any income, gross receipts, sales, use, ad
valorem, profits, license, transfer, withholding, payroll, social
security, excise, severance, stamp, value added, property, customs,
duties or similar fees, assessments or charges, together with interest
and penalties imposed by any federal, state, local or foreign
governmental authority competent for the imposition of any such Tax
(hereinafter referred to as the "TAX AUTHORITY") and any related payments
made to any third party pursuant to a tax indemnity arrangement together
with any interest and any penalties, additions to tax or additional
amounts imposed by such Tax Authority with respect to such amounts in
each case attributable to the period prior to the Closing Date.
9.1.3 The Purchasers shall not have any claims under this Section 9 if and to
the extent
(1) Taxes result from any transaction or action taken or omitted to be
taken by the Purchasers or the Target Group Companies after the
Closing Date;
(2) Subject to Section 8.4.2, the Target Group Companies have a valid
claim for compensation of the relevant Tax against other persons or
entities (e.g. insurance, employees, shareholders, customers etc.);
(3) the Tax could have been avoided or mitigated if the Purchasers had
complied with their obligations to inform the Seller and to
cooperate in handling the relevant tax matters.
9.1.4 Any accruals made for Taxes of the Target in the Financial Statements or
the Closing Date Balance Sheet may be applied and credited against a
claim by the Purchasers under Section 9.1 above provided that such
accrual was made for the type of Tax in respect of which a claim is made.
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9.1.5 [Intentionally blank]
9.1.6 If any payment giving rise to a claim for indemnification of Taxes under
this Agreement has given rise to a benefit by refund, set-off or
reduction of Taxes (hereinafter referred to as the "TAX BENEFIT") which
would not otherwise have arisen, then, if and when the liability of the
Target to make an actual payment of or in respect of Tax is reduced by
reason of that Tax Benefit, and after taking account of the effect of all
other Tax Benefits that are or will become available (including any Tax
Benefit derived from a subsequent accounting period), the amount by which
that liability is so reduced (hereinafter referred to as the "RELEVANT
AMOUNT") shall reduce the claim under this Section 9. The Seller shall
not be responsible for any Tax liabilities attributable to periods ending
on or before the Closing Date resulting from any change in the accounting
and taxation principles or practices of the Target Group Companies
(including methods of submitting taxation returns) introduced after the
Closing Date, except if required under mandatory law or by applicable
generally accepted accounting principles.
9.1.7 The Purchasers shall pay to the Seller such Tax Benefits and refunds
received for periods until Closing Date which (i) have not increased the
Purchase Price and (ii) have not decreased the liability under Section
9.1.6 and shall pay to the Seller the amount equal to any profit from the
release of liabilities and provisions for Taxes (Steuerruckstellungen)
shown in the Closing Date Balance Sheet.
9.1.8 Any additional profit and loss allocations resulting from any tax audit
relating to periods ending on or before the Closing Date shall not
increase nor reduce the Purchase Price and shall not entitle the Seller
to any additional profit distribution.
9.1.9 The Purchasers shall cause the Target Group Companies to permit the
Seller to get involved in all tax audits relating to periods ending on or
before the Closing Date. The Purchasers shall procure that the Target
Group Companies inform the Seller about the announcement or commencement
of such tax audit without any undue delay. If no agreement can be reached
on the results of any such tax audit, then the Purchasers shall upon
request of the Seller cause the relevant Target Group Company to initiate
legal proceedings against the respective tax assessment (Steuerbescheid)
and, if necessary, conduct a legal action in accordance with the Seller's
instructions (provided such instructions are reasonable). The external
costs of any such legal action shall, if unsuccessful, be borne by the
Seller, otherwise by the relevant Target Group Company.
9.1.10 With regard to any potential Tax claim,
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(a) the Seller is entitled to participate in field tax audits
(steuerliche Aubenprufung) and other proceedings under the tax laws of
the relevant jurisdiction which are initiated or continued after the date
hereof in relation to a Target Group Company if and insofar as they
relate to Tax attributable to time periods up to and including the
Closing Date. Any payment, settlement or similar action relating to Tax
attributable to time periods up to and including the date hereof which
could be reasonably expected to be detrimental to the Seller or a Target
Group Company shall require the Seller's prior approval which shall not
be unreasonably delayed or withheld and provided that no such prior
approval shall be required in a situation in which the Purchasers and /or
a Target Group Company has to comply with any legal obligations under the
mandatory tax laws of the relevant jurisdiction; and
(b) to the extent that the Seller is entitled to participate in
proceedings under Section 9.1.10(a), it shall be given notice in writing
as soon as reasonably feasible in order to enable it to take part in the
audit by sending one or several advisers, such advisers being subject to
professional codes of conduct and under a professional duty not to
disclose confidential information. The Seller's representatives and
advisers are entitled to participate in preliminary and final meetings.
The Purchasers shall use their reasonable best efforts to facilitate that
the Seller will as soon as reasonably feasible upon its written request
be provided with copies of all notices, assessments, reports and any
other information and documentation necessary to evaluate the Tax
position. If the Seller so reasonably requests in writing, the Purchasers
or the relevant Target Group Companies shall follow the Seller's
reasonable instructions unless fulfilment of such instructions is likely
to have a materially negative effect on the Purchasers or the relevant
Target Group Company with respect to tax periods after the Closing Date;
Purchasers or the relevant Target Group Company shall co-ordinate with
the Seller the treatment of any Tax claim or dispute and in particular
appeal tax assessments or rulings by the tax office. The costs of
complying with the Seller's instructions, in particular the costs of any
appeals, including any required advance fees, or the costs of judicial
proceedings, which the Purchasers conduct according to the instructions
of the Seller, are to be borne by the Seller.
9.2 ENVIRONMENTAL INDEMNITY
9.2.1 The Seller shall indemnify and hold harmless the Purchasers or, at the
Purchasers' absolute discretion, the Target Group Companies from and
against any costs, expenses, damages, penalties or liabilities reasonably
deemed necessary to be incurred by the Purchasers or any of the Target
Group Companies in relation to the MAPS Italy manufacturing facility in
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Cirie, Italy, arising from the following matters: (i) the removal of
asbestos or encapsulation of Environmental Contamination from asbestos
existing at Closing, (ii) the "make safe" restoration of the building
known as the "old boiler building" and (iii) proceedings following any
notice relating to Environmental Contamination relating to DOP
contamination on or around the tank form given by Seller or MAPS Italy to
governmental authorities or initiated by governmental authorities
relating to DOP contamination on or around the tank form prior to
Closing, or proceedings following any notice relating to soil
contamination relating to DOP contamination on or around the tank form
given by MAPS Italy after closing, and any Environmental Contamination
discovered in the course of such proceedings. For the avoidance of doubt,
Section 10.3.2 shall apply to this Section 9.2.1.
9.2.2 Assuming Purchaser 1 buys MAP India, the Seller shall indemnify and hold
harmless the Purchaser 1 or, at the Purchasers' absolute discretion, the
Target Group Companies from and against the pro rata share (see Section
8.1.3) of any actual Remediation Costs incurred by the Purchasers or any
of the Target Group Companies arising out of groundwater contamination
existing at Closing at the manufacturing facility operated by MAP India
in Sahibabad to the extent reasonably deemed necessary to comply with
Environmental Laws.
9.2.3 The first EUR 600,000 (in words: Euro six hundred thousand) of the
relevant costs under Section 9.2.1 or 9.2.2 as the case may be, shall be
exclusively borne by the Purchasers and (ii) the next further EUR
1,250,000 (in words: Euro one million two hundred fifty thousand) of the
costs shall be exclusively borne by the Seller and (iii) all costs
exceeding the amount of EUR 1,850,000 (in words: one million eight
hundred and fifty thousand) shall be borne equally by the Seller and the
Purchasers. Upon the Seller's request after 31 March 2009, the Parties
shall agree without undue delay upon an environmental expert who shall
decide upon an indemnification amount that in the opinion of such expert
constitutes a fair lump sum payment in respect of current and future
indemnification obligations of the Seller under Sections 9.2.1 and 9.2.2
above. The decision of the expert shall be final and binding upon the
Parties. In the event the Seller does not make such requests, the
indemnification obligations shall be settled by the Seller at the time
the prerequisites for such indemnifications under Sections 9.2.1 and
9.2.2 above are fulfilled.
9.3 SPECIFIC CUSTOMER INDEMNITY
Prior to 1999 MAPS GmbH entered into a commitment to supply certain parts
for the BMW E46 to Xxxxx Xxxxxx GmbH at the then specified prices. By
letter dated 9 December 1998 MAPS GmbH requested two alternative pricing
levels to be applied by Xxxxx Xxxxxx GmbH from 1
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July 1998, one level for the first two million parts supplied and a
second level for all subsequent parts. Xxxxxx was actually invoiced and
paid prices consistent with the first of these two pricing levels until
the end of production of these parts.
If BMW AG and / or Xxxxx Xxxxxx GmbH or an assignee raises and
establishes, pursuant to the opinion of a German attorney who shall be
reasonably acceptable to the Seller, a legally valid and enforceable
claim against MAPS GmbH for reimbursement of the excess amount of money
paid over the price properly to be invoiced to Xxxxx Xxxxxx GmbH, then
Seller shall hold harmless and indemnify the Purchasers, or in
Purchasers' absolute discretion the relevant Target Group Company, from
and against any such claims made by BMW AG and / or Xxxxx Xxxxxx GmbH or
an assignee based on the previous course of business under the above
mentioned arrangements. Without prejudice to Section 10.3.2, the
Purchasers undertake not to provoke any action which could provoke BMW AG
and / or Xxxxx Xxxxxx GmbH to raise any claim in respect of this matter.
Any action of the Purchasers in respect of this matter should be taken in
consultation with the Seller.
9.4 CLAW-BACK INDEMNITY
Seller shall hold harmless and indemnify Purchasers, or in Purchasers'
absolute discretion the relevant Target Group Company, from and against
any claim raised against the Target Group Companies by third parties in
insolvency or equivalent proceedings related to the Seller or Affiliates
of the Seller (other than the Target Group Companies) or after the
dismissal or cancellation of such proceedings due to a lack or an
insufficiency of assets, to recover (i) amounts received or deemed
received by the Target Group Companies from Seller or its Affiliates
(other than other Target Group Companies) in settling the Inter-Group Net
Payable and Inter-Group Net Receivable or (ii) amounts which are properly
the responsibility of and attributable to the Seller or its Affiliates
(other than as aforesaid).
9.5 PRODUCT LIABILITY INDEMNITY
MAPS Italy has entered into agreements for the supply of parts and/or
ser-vices to Pininfarina /Open Air Systems related to the Ford S389
program (Ford Focus Cabriolet). The Ford Motor Company is currently in
dispute with Pininfarina about the program and is threatening action
against Pininfarina. No allegations have been made against MAPS Italy.
However, if claims should in future be made against MAPS Italy in respect
of defects (in parts or services supplied by it) alleged to exist at or
before Closing, Seller shall hold harmless and indemnify the Purchasers,
or in Purchasers' absolute discretion MAPS Italy, from and against any
such claims, provided that no claim shall be enforceable and Seller shall
not be held liable under this Section 9.5 unless and until (a) MAPS Italy
has exhausted
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all remedies and cover available to it under its product recall and other
liability insurance, and (b) the Purchasers have exhausted all remedies
and cover available to them under the insurance cover referred to in
Section 8.4.1. Without prejudice to Section 10.3.2, the Purchasers
undertake not to provoke any action which could provoke The Ford Motor
Company or Pininfarina to raise any claim in respect of this matter. Any
action or agreement of the Purchasers or MAPS Italy that could affect the
Seller's indemnity obligation hereunder should be taken in consultation
with the Seller. For the avoidance of doubt, the Parties hereby agree
that any time limitations for an indemnity claim of the Purchaser under
this Section 9.5 shall be suspended (gehemmt) as soon as the Purchasers
have notified the Seller in writing that they intend, or one of them
intends, to bring a claim against the Seller, despite the fact the
remedies and covers described under (a) and (b) above have not been fully
exhausted at the time of such notification. Such suspension shall expire
six months from the later of (i) receipt of such notification by the
Seller, or (ii) exhaustion of the remedies and covers described under (a)
and (b) above, unless the relevant Purchaser(s) commence(s) arbitration
proceedings against the Seller within such period. Any statutory
provisions concerning the suspension of any such claim shall remain
unaffected.
10. SCOPE OF SELLERS' LIABILITY
10.1 TIME LIMITS
All claims of the Purchasers arising under this Agreement shall be
time-barred (verjahren) and lapse after 31 March 2009, except for
(1) all claims of the Purchasers in respect of liabilities for defects
of title arising from Section 7.2.3 which shall be time-barred and
lapse on the fifth anniversary of the Closing Date;
(2) all claims of the Purchasers arising under Section 7.10 (Tax
Returns etc.) which shall be time-barred and lapse three (3) months
after the date of the final and binding (formell und materiell
bestandskraftig) assessment concerning the respective Tax, and
claims of the Purchasers arising under Section 9.1 (Tax Indemnity)
shall be time-barred and lapse on 30 June 2010;
(3) all claims of the Purchasers arising under Section 13, which shall
become time-barred and lapse on 31 March 2010 in the case of Clause
13.1 or three (3) months after the expiry of the two year period
referred to in the case of Clause 13.2;
(4) all claims of the Purchasers arising under Section 9.2, which shall
become time-barred and lapse on the second anniversary of the
Closing Date;
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(5) all claims of the Purchasers arising under Section 9.3 and/or
Section 9.5, which shall become time-barred and lapse 18 (eighteen)
months after the Closing Date;
(6) all claims of the Purchasers arising as a result of willful or
intentional breaches of the Seller's obligations under this
Agreement which shall be time-barred and lapse in accordance with
the statutory rules set forth in Sections 195, 199 of the German
Civil Code (as amended from time to time);
((1) to (6) hereinafter collectively referred to as the "TIME
LIMITATIONS").
10.2 SUSPENSION
The Time Limitations as well as any other time limitations for other
claims under this Agreement shall be suspended (gehemmt) as soon as the
relevant Purchaser has notified the Seller in writing that it intends to
bring a claim against the Seller. Such suspension shall expire six months
from receipt of such notification by the Seller unless the relevant
Purchaser commences arbitration proceedings against the Seller within
such period. Any statutory provisions concerning the suspension of any
such claim shall remain unaffected.
The provisions of Section 9.1 shall remain unaffected.
10.3 NO RELIEF
10.3.1 The Purchasers shall not be entitled to make any Guarantee Claim under
this Agreement, and the Seller shall not be liable, if and to the
extent:
(1) (i) the matter to which the claim relates is provided for in the
Closing Date Balance Sheet by way of liability, provision
(Ruckstellung), or depreciation (Abschreibung) and (ii) was taken
into account in the determination of the Purchase Price; or
(2) the claim relates to a matter which is provided for by the relevant
Target Group Company per 31st December 2006 by way of liability,
provision (Ruckstellung), depreciation (Abschreibung) or write-down
(Wertberichtigung);
(3) the underlying facts, circumstances or events forming the basis of
the Purchasers' Claim (anspruchsbegrundende Umstande i.S.v. Section
199 Abs 1 Nr. 2 BGB), are actually known or deemed to be known by
the Purchasers pursuant to Section 8.5; or
(4) any damages of the Purchasers are covered by cash received from
third parties, including, but not limited to, through existing
insurance policies; or
(5) the event giving rise to such Purchasers' claim arises from a
change of the accounting principles of any of the Target Group
Companies,
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taken by the Target Group Companies after the Closing Date (unless
instructed in writing by the Seller); or
(6) any circumstances triggering an obligation or liability of the
Seller under this Agreement (other than under Section 9 above)
result in any of the Target Group Companies' receiving any benefit
by refund, offset or reduction of Taxes; the amount of the Tax
benefit shall be determined by discounting the likely future
reductions in Tax over a period of five years (5) applying the
statutory tax rate at the relevant time for all applicable income
taxes and discounted by an interest rate of 5% per annum; or
(7) the Purchasers or, after Closing, the relevant Target Group Company
have caused or partially caused or increased (verursacht oder
mitverursacht oder vergrobert) such claim, or the action triggering
such claim was taken with the written consent of the Purchasers or
any of its Affiliates; or
(8) the matter giving rise to the Guarantee claim is disclosed in the
Updated Disclosure Letter and such claim constitutes a Material
Adverse Change (for the purposes of Section 4.2.2), provided that
the Closing has been consumated; for the avoidance of doubt if the
matter giving rise to the Guarantee claim is disclosed in the
Updated Disclosure Letter but such claim does not constitute a
Material Adverse Change this shall not prejudice the Purchasers'
right under this Agreement to make such claim.
10.3.2 For the avoidance of doubt, the legal principles as to the calculation
of damages, mitigation of damages and off-setting of losses by
advantages caused due to the damaging event, contributory fault,
(Schadensberechnung, Schadensminderung, Vorteilsausgleichung,
Mitverschulden) pursuant to Sec. 249 et seq. of the BGB shall apply to
all claims of the Purchasers based on a breach of any of the Seller's
obligations under this Agreement.
10.4 KNOWLEDGE OF THE PURCHASERS
Section 442 of the German Civil Code and Section 377 of the German
Commercial Code as well as the legal principle expressed in these
provisions shall not apply, neither directly nor by analogy. Section 8.5
remains unaffected.
10.5 CUMULATIVE CLAIMS
All remedies, including the claim for specific performance under this
Agreement, shall be cumulative and not alternative, except as expressly
agreed to the contrary between the Parties.
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10.6 EXCLUSION OF FURTHER CLAIMS
The Purchasers shall have no claim against any Seller for compensation
for any indirect consequential damages (indirekte Folgenschaden), loss of
profits (entgangener Gewinn) or damages/losses to goodwill or for lost
opportunities (entgangene Geschaftschancen). Any right of Purchasers to
rescind or withdraw from this Agreement shall be excluded save as set out
in Section 4.5. Any claims and rights of Purchasers beyond the
independent guarantees provided for in Section 7, irrespective of nature,
amount and legal basis, in particular without limitation claims based on
defects, claims based on breach of pre-contractual obligations (Section
311 para. 2 and 3) or positive breach of contractual obligations, rights
of rescission because of an absence of essential qualities, or any claims
under section 313 BGB (Wegfall der Geschaftsgrundlage) and the right to
reduce the Purchase Price (Minderung) and any liability in tort
(Deliktshaftung) are hereby expressly waived and excluded. Section 24 (2)
German Act on Soil Protection (Bundesbodenschutzgesetz) shall not apply.
Claims for specific performance (Vertragserfullung) under this Agreement,
including the fulfillment of covenants given under this Agreement, and
claims based on willful misconduct or sections 123 and 826 BGB shall not
be affected.
11. PARTICIPATION, INFORMATION, ETC.
11.1 INFORMATION OF CLAIMS
The Purchasers or, after Closing, the relevant Target Group Company shall
without undue delay:
11.1.1 inform the Seller by notice in writing of any circumstance whereby it
appears in the reasonable opinion of the Purchasers that the Seller is or
may be liable under this Agreement, stating the grounds and nature of the
potential claim in reasonable detail and its estimated amount, within a
period of one month from the time the Purchasers or the relevant Target
Group Company learns of such circumstance; and
11.1.2 thereafter keep the Seller reasonably informed of all developments in
relation thereto; and
11.1.3 allow, and shall cause the Target Group Companies to allow, the Seller
and its accountants and professional advisers to investigate the matter
or circumstance alleged to give rise to such claim, and whether and to
what extent any amount is payable in respect of such claim and, for such
purpose, the Purchasers shall give and shall cause the Target Group
Companies to give, such documentation information (no matter how it is
recorded or stored) and assistance, as the Seller or its accountants or
professional advisers may reasonably request; and
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11.1.4 give opportunity to the Seller (through or together with their advisers)
to investigate the basis of and the amount potentially payable with
respect to a potential liability claim, provided that the right to
investigate includes the right to receive all relevant information and
reasonable assistance, to have reasonable access to premises and
personnel at normal business hours and the right to examine and copy or
photograph any pertinent assets.
11.2 THIRD PARTY CLAIMS
In circumstances where (i) a claim is made against the Purchasers or a
Target Group Company which should reasonably be expected to give rise to
a claim against the Seller or (ii) the Purchasers or the relevant Target
Group Company should reasonably be expected to be able to recover from a
third party any sum in respect of any facts or circumstances by reference
to which the Purchasers have or should be reasonably expected to have a
claim against the Seller, as soon as reasonably practicable the
Purchasers shall and shall procure that the respective Target Group
Company give notice to the Seller and:
(1) ensure that the Seller is given reasonable opportunity to comment
or discuss with the Purchasers any measures which the Purchasers
propose to take or omit in connection with a third party claim;
(2) do not admit liability or make any agreement or compromise with any
person, body or authority in relation to that third party claim
without prior consultation with the Seller; and
(3) take any action that the Seller reasonably requests in order to
effectively avoid, dispute, resist, compromise, defend or appeal
against any claim pursuant to (i) or make such recovery pursuant to
(ii), as the case may be.
No admission of liability shall be made by the Purchasers and the
third-party claim shall not be compromised, disposed of, or settled
without the prior written consent of the Seller, which shall not be
unreasonably withheld. If and to the extent the third party claim is not
successfully resisted, the reasonable external costs of the Purchasers
and / or the relevant Target Group Company in connection with this
Section 11.2 shall be borne by the Seller. If and to the extent the third
party claim is successfully resisted, the reasonable external costs of
the Seller shall be borne by the Purchasers.
11.3 REPAYMENTS
In circumstances where the Seller has paid to the Purchasers or a Target
Group Company an amount in respect of a claim under this Agreement and
subsequent to the making of such payment the Purchasers or a Target
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Group Company recover from some other person a sum which is referable to
that payment, the Purchasers shall and shall procure that the respective
Target Group Company shall repay to the Seller an amount equal to the
amount so recovered or, if lower, the amount paid by the Seller to the
Purchasers or the Target Group Company. This shall not apply to any
amounts the Purchasers or the Target Group Company has recovered from the
escrow accounts and / or the insurance referred to in Section 8.4 of this
Agreement, since they shall generally not be considered to be third
parties for provisions of this Agreement, which provide for an exclusion
or reduction of Purchasers' claims in the event a recovery from a third
party is possible.
12. COVENANTS
12.1 SELLER'S COVENANTS
12.1.1 From the Signing Date through the Closing Date, the Purchasers shall have
the right to request information on any major transaction or decision
which might substantially affect the business of the Target Group
Companies and, to the extent permissible by law, the Seller shall, or
shall cause the Target Group Companies to, provide such information to
the Purchasers without undue delay.
12.1.2 Save as otherwise required by this Agreement, during said period, the
Seller shall use all reasonable endeavors to cause the Target Group
Companies to operate their business only in the ordinary course of
business and consistent with past practice and not to deviate from such
ordinary course of business, including without limitation, by
(1) incurring any obligation or liability exceeding an amount of EUR
250,000 (two hundred fifty thousand Euros) in the individual case,
except current liabilities for trade or business obligations
incurred in connection with the purchase of goods or services in
the ordinary course of business and consistent with prior practice;
(2) mortgaging, pledging or subjecting to any lien, charge or any other
encumbrance or restriction any of its property, business or assets
except in the ordinary course of business;
(3) entering into new loan or credit agreements or obtaining other
financing, except (i) short-term financing not exceeding EUR
250,000 (two hundred fifty thousand Euros) in the individual case,
(ii) credit facilities to be provided by Cariparma-Credit Agricole,
specifically a loan on invoices and a stand-by credit facility each
in the amount of EUR 1,000,000 and (iii) a letter of credit
regarding the protection of the old age part time accounts
(Burgschaft zur Sicherung der Altersteilzeit-Guthaben) by
Bayerische Hypo- und Vereinsbank AG or Commerzbank AG in favour of
MAPS GmbH;
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(4) acquiring or selling any participation in other entities or
incurring the obligation to acquire or sell any such participation;
(5) entering into any company collective bargaining agreement;
(6) making any change in the compensation, bonus or other remuneration
payable, or paying or agreeing to pay, any bonus, extra
compensation, pension or severance pay, to any director or officer;
(7) commencing any new branches of business;
(8) terminating or materially amending or modifying any of the Material
Agreements;
(9) distributing any dividends;
(10) amending the Target Group Companies' articles of association;
(11) issuing any new shares or reducing the share capital, or issuing,
granting or selling any options, rights or warrants with respect to
shares;
(12) making any capital expenditures in excess of the amounts disclosed
in Annex 12.1.2(12).
12.1.3 The restructuring of the business in Germany as set out in Annex 12.1.3
will be completed by the Seller. Shortly before Closing, the Parties
shall agree on an estimate of cash cost remaining for the completion of
the restructuring following Closing - such estimated cash costs are to be
deducted from the preliminary purchase price payable at Closing. If and
to the extent the actual costs for the restructuring following Closing
are greater, Purchasers are entitled to claim such excess against the
Warranty Escrow. If and to the extent the actual cost for the
restructuring following Closing are lower, such excess will be added to
the Warranty Escrow.
12.1.4 The Seller shall up to and after Closing provide all necessary and/or
useful information in its possession for the preparation of audited pro
forma financial statements of the Target Group Companies for 2004, 2005
and 2006; the costs are to be borne by the Purchasers. The Seller will
assist the Purchasers in agreeing the scope and the costs of such audited
statements with PwC. The Seller will at Purchasers' cost up to Closing
also assist the Purchasers in the preparation of such audited statements.
12.1.5 The Seller shall without undue delay after the date hereof make, or
procure the making of, the notifications required by relevant law to the
relevant employees' representative bodies as follows:
(1) MAPS GmbH and MTRS GmbH shall inform their economic committee
(Wirtschaftsausschuss) and works council (Betriebsrat); and
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(2) MAPS Benelux shall inform its works council.
12.1.6 The Seller and MAPS Europe GmbH have entered into a cash concentration
agreement on 1 December 2004 (the "CASH CONCENTRATION AGREEMENT"). The
Seller shall ensure that the Cash Concentration Agreement will be
terminated prior to Closing. All outstanding amounts under the Cash
Concentration Agreement and the date of its termination shall be
considered for the calculation of the Inter-Company Net Payable and
Inter-Company Net Receivable.
12.1.7 The Seller undertakes that
(1) if the Closing takes place pursuant to Section 4.1(b) it shall
procure that (other than in the ordinary course of trading) no Cash
is paid or committed to be paid by any of the Target Group
Companies to it or any of its Affiliates (other than the Target
Group Companies) in the period from the last day of the calendar
month preceding Closing up to and including the Closing Date
("LEAKAGE PAYMENTS"); and
(2) if any Leakage Payments are received by it or any of its Affiliates
(other than the Target Group Companies) in that period, to repay
them immediately to the relevant Target Group Company.
12.2 INDEMNIFICATION
The Seller shall indemnify and hold harmless the Purchasers or, at the
Purchasers' absolute discretion, the relevant Target Group Company, from
and against any and all losses, arising from or in connection with a
breach of any of the covenants set forth in Sections 12.1.1 and 12.1.2.
12.3 PURCHASERS' COVENANTS
12.3.1 The Purchasers have prior to Signing delivered true and complete copies
of binding financing commitments to the reasonable satisfaction of the
Seller sufficient to cover all payments set forth under Section 5.2.3.
12.3.2 The Purchasers shall use or shall cause the Target Group Companies to use
all reasonable efforts to support the Seller with respect to the
application of the Seller and its Affiliates to Pirelli for the grant of
the license to use the companies' name for the time period specified in
Section 3.3.
12.3.3 The Purchasers shall provide or procure the provision by the Target Group
Companies and Shanghai SAIC-Metzeler of any reporting of financial
accounting information relating to the time prior to Closing and
according to the current reporting practice exercised by the Target Group
Companies in order to enable the Seller to provide for proper accounting
in the companies belonging to the group but remaining with the Seller.
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12.3.4 A settlement is being organized in a class action in the US District
Court of Connecticut titled "Crompton Settlement" and designated as Case
No. 3:03 MD 1542 (SRU) (the "SETTLEMENT") in the US, relating to the
manipulation of the pricing of epdm from 1997 to 2001. It appears that
the Target Group Companies in Europe may be a beneficiary. The Purchasers
undertake to take, and to procure the taking by the Target Group
Companies of, all such actions as may be reasonably required to preserve
the Target Group Companies' claims and rights under the settlement and
without undue delay after receipt to remit, or procure the remittance by
the relevant Target Group Companies, of all amounts (if any) received
under the Settlement until 31 March 2009, after deduction of all
applicable Taxes to Seller.
13. NON-SOLICITATION
13.1 NON-COMPETE
The Seller undertakes to use all reasonable efforts to procure that the
Seller's Affiliates in the United Kingdom, France and Spain shall not for
the time periods up to the earlier date of a sale of such Affiliate to
third parties or 31 December 2009, in each case to the extent permissible
by law, (i) solicit, accept or attempt to obtain any business currently
under contract or awarded as specified in Annex 13.1 and, (ii) establish
manufacturing, engineering, research and development facilities for
weather sealing products in Germany and Italy. The Seller further
undertakes that, on the sale of one of its Affiliates in the United
Kingdom, France and / or Spain before 31 December 2009, it will use all
reasonable efforts to impose the foregoing obligations on the purchasers
of such Affiliate(s). For the avoidance of doubt, the Parties agree that
"all reasonable efforts" shall include exercising statutory rights, but
shall not extend to dismissing or penalizing management of the relevant
Affiliate, nor to paying money.
13.2 NON-SOLICITATION
13.2.1 The Seller undertakes, and shall cause each of the Seller's Affiliates to
undertake, for a period of two years from the Closing Date, not to
solicit or entice away from the Target Group Companies, or to offer
employment to or employ, or to offer or conclude any contract for
services with, any person who was employed by the Target Group Companies
in a senior managerial position at the date hereof.
13.2.2 The Purchasers undertake, and shall cause each of the Purchasers'
Affiliates and, after Closing, the Target Group Companies to undertake,
for a period of two years from the Closing Date, not to solicit or entice
away from the Seller and/or its Affiliates, or to offer employment to or
employ, or to offer or conclude any contract for services with, any
person
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who was employed by the Seller or its Affiliates in a senior managerial
position at the date hereof.
14. MAP INDIA
14.1 PRE-EMPTIVE RIGHT OF TOYODA
Under the MAP India JVAgreement and the shareholders' agreement /
articles / statutes of MAP India, Toyoda has a pre-emptive right in
regard to the Seller's Shares in MAP India ("TOYODA PRE-EMPTIVE RIGHT");
moreover, Toyoda's consent to the transfer of the Seller's Shares in MAP
India to the Purchaser 1 is required. The Seller and the Purchaser 1
shall use all reasonable endeavors, and the Seller undertakes to support
the Purchaser 1 in its negotiations with Toyoda, to persuade Toyoda (i)
not to exercise its pre-emptive right and (ii) to give its consent to the
transfer of Seller's Shares in MAP India to the Purchaser 1 including any
necessary board approval. The Seller shall promptly after the Signing
Date send a letter to Toyoda, as required under the MAP India
JVAgreement, in order to trigger the thirty day period within which
Toyoda must decide whether to exercise its pre-emptive right or not, and
to give or deny its consent. The Seller shall ensure that the Purchaser 1
will be involved in any discussions with Toyoda that may take place
within the thirty day period.
14.2 ALTERNATIVE 1: TOYODA DOES NOT EXERCISE ITS PRE-EMPTIVE RIGHT
14.2.1 If Toyoda does not exercise its pre-emptive right and consents (or is
deemed to consent) to the transfer of Seller's Shares in MAP India in
accordance with the provisions set forth in the MAP India JVAgreement,
the Seller shall transfer title to the Seller's Shares in MAP India to
the Purchaser 1 in accordance with the requirements under Indian law, as
soon as practically possible after the receipt of such consent in
writing, at the earliest however on the Closing Date. The Seller and the
Purchaser 1 shall use all reasonable endeavors to obtain any necessary
regulatory or other third party consent(s) for such transfer.
14.2.2 The Purchase Price allocated to the Seller's Shares in MAP India (as
included in the Purchase Price) is EUR 8,000,000 ("MAP INDIA PRICE") and
shall be paid by the Purchaser 1 (a) by way of release of the India
Escrow to the Seller net of an amount equal to the India WHT and (b) by
release of an amount equal to the India WHT to the Tax Authorities in
India. Any dividend or other distributions to the Seller after 31
December 2006 will result in a EUR for EUR reduction of the MAP India
Price. The India Escrow is to be released to Seller and the Tax
Authorities in India as set out above promptly after the consent to the
transfer of the Seller's Shares in MAP India to the Purchaser 1 and the
waiver of its right of pre-emption have been obtained from Toyoda in
writing, or the relevant waiting periods have expired, whatever occurs
first.
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14.2.3 The Parties shall co-operate to the extent necessary prior to Closing to
determine and agree the amount of the India WHT. Each of the Seller and
the Purchaser 1 shall promptly and duly make all such filings and
declarations as may be required by Tax law or practise in connection with
the determination and payment of the India WHT, and the Purchaser 1 shall
promptly provide to the Seller all certificates, documents or information
that Seller reasonably requires to obtain the benefit of / credit for the
India WHT.
14.3 ALTERNATIVE 2: TOYODA EXERCISES ITS PRE-EMPTIVE RIGHT
14.3.1 If Toyoda either duly exercises its pre-emptive right in writing or
refuses to consent to the transfer in writing of the Seller's Shares in
MAP India to the Purchaser 1, the India Escrow shall:
(1) if such exercise or refusal occurs after the Closing Date, promptly
be released to Purchaser 1, or
(2) if such exercise or refusal occurs prior to the Closing Date be
withheld by the Purchaser 1 as set out in Section 5.2.2.
In either such case, the Seller's Shares in MAP India shall then not be
transferred to Purchaser 1 and the Purchase Price shall be reduced by an
amount equal to the MAP India Price.
14.3.2 For the avoidance of doubt, the Parties confirm their understanding that
the execution and implementation of the other transactions contemplated
by this Agreement shall not be contingent upon the decision of Toyoda
whether or not to exercise its pre-emptive right in regard to the
Seller's Shares in MAP India.
15. MAPS CHINA
The Shares held by MAPS Italy in Shanghai SAIC-Metzeler ("MAPS CHINA
INTEREST") shall indirectly pass to the Purchaser 1 as a result of the
transfer of the Seller's Shares in MAPS Italy upon the consummation of
the Closing.
The Purchaser 1 shall use all reasonable endeavors to obtain SAIC's and
Zhaotun's agreement that the sealing operations of the Purchaser 1 and
Shanghai SAIC-Metzeler may be combined following the Closing on the basis
of the concept outlined in Annex 15 and on terms reasonably acceptable to
the Purchaser 1. The Seller shall support the Purchaser 1 in its
negotiations with SAIC.
If the Purchaser 1 fails to get the agreement of SAIC and Zhaotun as
described above, the Purchaser 1 shall have the right to require that the
Seller shall as soon as practically possible purchase the MAPS China
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Interest from MAPS Italy at a fixed price equivalent to USD 15,300,000
(US Dollars fifteen million three hundred thousand) (the "MAPS CHINA
PRICE"). This fixed price shall be payable against (Zug-um-Zug) transfer
of title to the MAPS China Interest. The Purchaser 1 and the Seller shall
use all reasonable endeavors to obtain all necessary regulatory or other
third party consent(s) for such transfer.
The Purchaser 1 has to provide the Seller with a written notice of its
election to have the Seller purchase and acquire the MAPS China Interest
at the latest two weeks prior to the Closing Date (the "CHINA SELLING
NOTE"). If the Seller has issued the China Selling Note, the MAPS China
Price shall be paid to the China Escrow Account.
If the MAPS China Interest is sold and transferred to Seller under this
Section 15, the Parties agree that the Seller and the Purchaser 1 shall
each bear 50% of the net (non-recoverable) Tax incurred by them and their
respective Affiliates as a direct result thereof (i.e. transfer taxes,
stamp duty or documentary taxes and tax on capital gains). The Purchaser
1 and the Seller shall cooperate to determine and agree the amount of
such Tax and shall, without undue delay after such amount is agreed or
determined, make such balancing payments between them as may be
necessary.
If the MAPS China Interest cannot be sold and/or transferred to the
Seller, because the legal requirements are not fulfilled, in particular
(a) the relevant application forms and documents in respect of the sale
and transfer have not been signed by the chairman of Shanghai
SAIC-Metzeler, or
(b) the sale and transfer has not been approved by the Board of
Directors of Shanghai SAIC-Metzeler, or
(c) no waiver letter has been issued by each non-transferring
shareholder (i.e., SAIC and Zhaotun) waiving its pre-emption right
in respect of the sale and transfer, or
(d) the Chinese authorities have refused to grant a necessary approval
for the sale and transfer of the MAPS Chinese Interest,
(together the "CHINA APPROVALS")
the MAPS China Interest shall remain with MAPS Italy and any steps taken
in connection with the sale and transfer from MAPS Italy to the Seller
shall be cancelled and, to the extent necessary reversed.
16. MERGER NOTIFICATION
16.1 NOTIFICATION OF THE TRANSACTIONS
16.1.1 The Seller and the Purchasers shall use their best efforts to obtain
merger clearance of the transactions contemplated in this Agreement as
soon as possible after the Signing Date.
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16.1.2 The notification of the transactions contemplated herein to the competent
antitrust authorities shall be prepared and submitted by the Purchasers,
provided that the form and content of such notification must have been
coordinated with the Seller in writing prior to submission to the
relevant authority.
16.1.3 The Seller shall (and shall cause the Target to) submit to the
Purchasers, as soon as practical after the Signing Date, all documents,
data and other information in its possession which are requested by the
Purchasers and are, in the reasonable judgment of the Purchasers,
necessary for the purposes of preparing, amending or supplementing the
pre-merger notification.
16.1.4 The Purchasers and the Seller shall promptly, correctly and fully satisfy
any requests of the relevant authorities and shall keep each other
informed as to the progress thereof. Each Party shall provide to the
other copies of all correspondence with the relevant authorities and
shall, to the extent practically possible, not participate in any
meetings, conference calls or similar discussions with such authorities
or provide any information or otherwise communicate with any relevant
authority without (a) first consulting with the other party and taking
into account its reasonable requirements and (b) ensuring that the other
party can, if it so wishes, attend or be represented in any such meeting,
conference call or similar discussion. No information relating to the
Seller or to any companies, funds or entities associated or affiliated,
controlled or managed by or under common control or management with any
of it, or to it respective businesses shall be given to any relevant
authority without the prior written consent of the Seller, unless such
information has been expressly provided to the Purchasers by the Seller
for such purposes.
16.1.5 If the Purchasers become aware that it is reasonably likely that the
Condition Precedent in Section 4.2.1 will not be satisfied or that
conditions or obligations may be imposed which could affect the Seller,
it shall notify the Seller forthwith in writing.
16.2 CLEARANCE OF THE TRANSACTIONS SUBJECT TO CONDITIONS
If and to the extent that the competent antitrust authorities grant
clearance of the transactions contemplated herein only subject to the
satisfaction of any conditions (Auflagen oder Bedingungen) by the Seller
and / or the Purchasers or any of their affiliated entities, the Seller
and Purchasers shall contemplate and as soon as practicable consult each
other in good faith, whether they deem it reasonable for them to satisfy
such conditions. The Parties, however, agree that a condition to divest a
facility of a Purchaser shall not be considered reasonable.
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16.3 NON-CLEARANCE OF THE TRANSACTIONS
If and to the extent that the competent antitrust authorities do not
grant clearance of the transactions contemplated herein, the Purchasers
shall have the right, but shall not be obligated to, seek any appropriate
remedy available under applicable law against such non-clearance. At the
request of the Purchasers, the Seller, too, shall seek such remedy or
participate in any proceedings initiated by the Purchasers for such
purposes, each in such manner as specified by the Purchasers.
17. CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS
17.1 CONFIDENTIALITY IN RELATION TO COMPANY
17.1.1 The Seller shall keep strictly confidential all information it has in
relation to the Target Group Companies and their business operations and
shall not use such confidential information for itself or for any third
party except to the extent that the relevant facts are publicly known or
disclosure is required by law.
17.1.2 The Purchasers shall, and shall (after Closing) procure that the Target
Group Companies shall, keep strictly confidential all information they
have in relation to the Seller and its Affiliates and their business
operations and shall not use such confidential information for themselves
or for any third party except to the extent that the relevant facts are
publicly known or disclosure is required by law.
17.2 CONFIDENTIALITY IN RELATION TO THIS AGREEMENT AND THE PARTIES
The Parties to this Agreement shall keep strictly confidential any
information obtained by them in connection with the negotiation and
conclusion of this Agreement with respect to this Agreement, the
transactions contemplated herein and the respective other Parties and its
affiliated entities except to the extent that the relevant facts are
publicly known or disclosure is required by law. The Seller shall,
however, have the right to submit any information to the Seller's
Affiliates or its or their banks or investors which is necessary or
appropriate for the purposes of the execution and consummation of this
Agreement and the transactions contemplated herein. The Purchasers shall
have the right to submit any information to any of their Affiliates or
their banks or investors which is necessary or appropriate for the
purposes of the execution and consummation of this Agreement and the
transactions contemplated herein.
17.3 PUBLIC ANNOUNCEMENTS
No public announcement shall be made with respect to the transactions
contemplated herein without the consent of both Parties, save to the
extent
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required by law. In any case, the Parties will consult so far as
practicable on such announcement.
18. COSTS AND TRANSFER TAXES
18.1 COSTS OF ADVISORS
Each Party shall bear its own costs and expenses in connection with the
preparation, execution and consummation of this Agreement, including,
without limitation, any and all professional fees and charges of its
advisors.
18.2 OTHER COSTS; FEES
The costs of the notarization of this Agreement and the transfer
documentation and the fees of the competent antitrust authorities shall
be borne by the Purchasers. The Seller shall bear the costs of the
transfer of MAPS VLM pursuant to Section 2.2.3 (4).
18.3 TRANSFER TAXES
Any transfer taxes including, without limitation, real estate transfer
tax (Grunderwerbssteuer), stamp duty and similar taxes or charges
resulting from the execution and consummation of this Agreement shall be
borne by the Purchasers.
19. LIABILITY; ASSIGNMENTS OF RIGHTS AND OBLIGATIONS
19.1 JOINT AND SEVERAL LIABILITY
The Purchasers shall be jointly and severally liable (haften
gesamtschuldnerisch) for all obligations assumed by any of them to or for
the benefit of the Seller under or in connection with this Agreement.
19.2 NO ASSIGNMENT WITHOUT CONSENT
This Agreement and any rights and obligations hereunder cannot be
transferred or assigned in whole or in part without the prior written
consent of the other Parties hereto, subject to Section 3.1 of this
Agreement.
19.3 ASSIGNMENT BY PURCHASERS
The Purchasers, however, may transfer or assign this Agreement or any
rights or obligations hereunder to any of their affiliated entities
(within the meaning of Section 15 et seq. of the German Stock Corporation
Act). In the event of any such transfer or assignment, the Purchasers
hereby guarantee the performance of the obligations of the transferee or
assignee under this Agreement.
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20. NOTICES
20.1 FORM OF NOTICE
Any notice or other declaration hereunder shall be in writing, unless
notarization or any other specific form is required, and shall become
effective upon receipt by the recipient Party.
20.2 REPRESENTATION OF THE PURCHASERS
20.2.1 The Purchaser 2 hereby authorizes Purchaser 1 to make and receive all
declarations and to execute all documents (in whatever form) and to take
all actions (of whatever kind), which in the discretion of the Purchaser
1 seem to be necessary or appropriate in connection with any matter set
forth in this Agreement. The Purchaser 2 releases the Purchaser 1 from
any potential restrictions regarding self dealing and multiple
representation under applicable local law, to the extent permissible by
applicable local law. Purchaser 2 can terminate this authorization at any
time by written notice to the Seller.
20.2.2 The Purchaser 1 shall procure that any Substitute Purchaser authorizes it
to make and receive all declarations and to execute all documents (in
whatever form) and to take all actions (of whatever kind), which in the
discretion of the Purchaser 1 seem to be necessary or appropriate in
connection with any matter set forth in this Agreement. The Substitute
Purchaser shall release the Purchaser 1 from any potential restrictions
regarding self dealing and multiple representation under applicable local
law, to the extent permissible by applicable local law. The Substitute
Purchaser shall be entitled to terminate this authorization at any time
by written notice to the Seller.
20.3 NOTICES TO SELLER
Any notice or other declaration to be given to the Seller hereunder shall
be addressed as follows:
Automotive Sealing Systems S.A.
Attn: Board of Directors
Xxxxxx xx xx Xxxx 00,
0000 Xxxxxxxxxx, Xxxxxxxxxx
with a copy to:
Talisman Management Limited
Attn: Xxxxx Xxxxxxxx
00 Xxxxxxx Xxxxx
Xxxxxx, XX0 0XX
Xxxxxx Xxxxxxx
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or such other address as the Seller may communicate to the Purchasers in
writing.
20.4 NOTICES TO PURCHASERS
Any notice or other declaration to be given to the Purchasers hereunder
shall be addressed as follows:
Xxxxxx-Standard Automotive Inc.,
Attn: General Legal Counsel,
00000 Xxxxxxx Xxxx Xxxxx, Xxxx,
XX 00000, XXX
or such other address as the Purchasers may communicate to the Seller in
writing.
20.5 COPIES TO ADVISOR AND / OR ACTING NOTARY
20.5.1 The receipt of copies of notices or other declarations hereunder by the
Parties' advisors shall not constitute or substitute the receipt of such
notices or other declarations by the Parties themselves.
20.5.2 Any notice or other declaration hereunder shall be deemed received by a
Party regardless of whether any copy of such notice or other declaration
hereunder has been sent to or received by an advisor of such Party or the
acting notary, irrespective of whether the delivery of such copy was
mandated by this Agreement.
21. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Germany, excluding (i) the United Nations Convention on Contracts
for the International Sale of Goods (CISG) and (ii) the German provisions
on conflicts of laws.
22. ARBITRATION
Any dispute, controversy or claim arising from or in connection with this
Agreement and its execution or validity shall be finally settled by three
arbitrators in accordance with the Arbitration Rules of the German
Institution of Arbitration e.V. (DIS) as amended from time to time
without recourse to the ordinary courts of law. The place of the
arbitration shall be Frankfurt am Main. The language of the arbitral
proceedings shall be English. To the extent that proceedings in state
courts are permissible, the courts of Frankfurt am Main shall have
non-exclusive jurisdiction.
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23. MISCELLANEOUS
23.1 INTEREST UNDER THIS AGREEMENT
Except as otherwise provided herein, each Party shall pay interest on any
amounts becoming due and payable to the other Party, as the case may be,
under this Agreement as from the respective due dates until, but not
including, the day of payment at the rate of 300 basis points over the
basic interest rate (Basiszinssatz) within the meaning of Section 247
para. 1 of the German Civil Code on the basis of actual days elapsed and
a 360-day-year.
23.2 AMENDMENTS; SUPPLEMENTATION
Any amendment or supplement to or modification or termination of this
Agreement, including this provision, shall be valid only if made in
writing, except where a stricter form (e.g. notarization) is required
under applicable law. Any amendment, supplement or modification of this
Agreement shall further only be valid upon written approval of the
insurer of the insurance described in clause 8.4 above.
23.3 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement among and between the
Parties with respect to the subject matter hereof and shall substitute
and supersede any negotiations, agreements and understandings, oral or
written, heretofore made between the Parties with respect to the subject
matter hereof. There are no side agreements to this Agreement.
23.4 SEVERABILITY
Should any provision of this Agreement be or become invalid, ineffective
or unenforceable as a whole or in part, the validity, effectiveness and
enforceability of the remaining provisions shall not be affected thereby.
Any such invalid, ineffective or unenforceable provision shall be deemed
replaced by such valid, effective and enforceable provision as comes
closest to the economic intent and purpose as of such invalid,
ineffective or unenforceable provision as regards subject-matter, amount,
time, place and extent. The aforesaid shall apply mutatis mutandis to any
gap in this Agreement.
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Annex 1.1 to Share Sale and Purchase Agreement
ANNEX 1.1 TO SHARE SALE AND PURCHASE AGREEMENT
DEFINITIONS
AGREEMENT shall mean the entirety of this agreement including the Annexes set
forth in Annex 1.4 to this Agreement and other attachments hereto.
ACCOUNTING DOCUMENTS shall have the meaning set forth in Section 6.1.
AFFILIATE / AFFILIATES shall mean all companies and other entities related to a
Party within the meaning of Section 15 et. seq. of the German Stock Corporation
Act (Aktiengesetz).
BASKET shall have the meaning set forth in Section 8.2.
BGB shall mean the German Civil Code.
BUSINESS DAY shall mean a day (not including any Saturday or Sunday) on which
the commercial banks in Germany are open for general business.
CASH shall mean cash and cash equivalents of the Target Group Companies
incorporated in Germany and Italy (on a consolidated basis).
CASH CONCENTRATION AGREEMENT shall mean the cash concentration agreement
concluded between the Seller and MAPS Europe GmbH on 1 December 2004.
CHINA APPROVALS shall have the meaning as set out in Section 15.
CHINA ESCROW AGREEMENT shall have the meaning set out in Section 5.8.
CHINA ESCROW ACCOUNT shall have the meaning set out in Section 5.8.
CHINA ESCROW AMOUNT shall mean the sums paid into the China Escrow Account.
CHINA SELLING NOTE shall have the meaning set out in Section 15.
CLOSING shall mean the consummation of the transactions contemplated by this
Agreement pursuant to Section 4.1.
CLOSING DATE shall have the meaning set out in Section 4.1.
CLOSING DATE BALANCE SHEET shall have the meaning set out in Section 6.4.
CONDITION(S) PRECEDENT shall mean one of the conditions set out in Section 4.2.
DATA ROOM shall mean virtual data room at Xxxxxxxx Chance Connect including the
matter sites Project Falcon Finance & Tax, Project Falcon HR, Project Falcon IT,
Project Falcon Legal, Project Falcon Operations, Project Falcon Purchasing and
Project Falcon Sales & Engineer.
DE MINIMIS CLAIMS shall have the meaning set forth in Section 8.2.
DISCLOSURE LETTER shall mean the letter attached to this Agreement as Annex
8.5(b).
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DRAFT CLOSING DATE BALANCE SHEET shall mean the draft consolidated financial
statements as specified in Annex 6.2. as at the Closing Date.
ENVIRONMENTAL CONTAMINATION shall mean the contamination or pollution of (i) the
air (including, without limitation, the air within buildings and other natural
or manmade structures whether above or below ground), (ii) the water (including,
without limitation, surface and ground water and water within pipes, drains or
sewers), (iii) the land (including, without limitation, the soil, sub-soil,
sediment or other terrestrial material), (iv) the organisms (including, without
limitation, human beings), or (v) buildings, operational facilities and other
property currently in use, above and below ground) by Hazardous Material that
exists from the land, the buildings, the operational facilities (each as
described above).
ENVIRONMENTAL LAWS shall mean all international, European Union, national and
regional laws (including without limitation royal decrees, legislative decree
and law-decrees) and all national, regional and local rules implementing
regulations, decrees and rules (including without limitation presidential,
ministerial, regional or local regulations, decrees, ordinances, rules and
circulars), in relation to all matters related to the pollution or protection of
the environment and/or human health and safety, with any judicial or
administrative interpretation of each of the foregoing, as in force and applied
at the Closing Date.
ESCROW AGENT shall mean Rechtsanwalt Heinrich von Mettenheim, Xxxxxxx
Xxxxxxxx(xxxx)x 00, 00000 Xxxxxxxxx xx Xxxx, or any other escrow agent agreed
upon by the Parties.
EXPERT shall mean the expert referee (Schiedsgutacher) to be appointed in
accordance with Section 6.7.2.
EXTENDED TAX ESCROW shall have the meaning as defined in Section 5.6.3(2).
EXTENDED TAX ESCROW PERIOD shall have the meaning as defined in Section
5.6.3(3).
EXTENDED TAX ESCROW FUNDS shall have the meaning as defined in Section 5.6.3(3).
FINANCIAL DEBT shall mean the indebtedness for borrowed monies of the Target
Group Companies in Germany and Italy (on a consolidated basis), excluding for
the avoidance of doubt amounts included as liabilities in Net Working Capital,
reorganization provisions, Tax and deferred tax obligations, pensions and post
retirement obligations. Sales / assignments of accounts receivable through
factoring or similar arrangements shall be treated as Financial Debt (a) if they
are not of the type classified as non-recourse (pro soluto) under the current
accounting policies of the Target Group Companies consistently applied or (b) in
the case of amounts so classified by the Target Group Companies as non-recourse
(pro soluto), to the extent the total of such amounts exceeds EUR 14 Million.
FINANCIAL STATEMENTS shall have the meaning set out in Section 7.13.1.
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GUARANTEE CLAIM shall mean a claim for breach of Guarantees.
GUARANTEES shall mean the independent promises of guarantee in accordance with
Section 311 Para.1 of the German Civil Code (selbstandiges Garantieversprechen)
of the Seller to the Purchasers set out in Section 7.
HAZARDOUS MATERIAL shall mean any material or substance, including waste, which,
alone or in combination with other substances, causes or may cause harm to the
environment or to the health and safety of any person.
INDIA ESCROW ACCOUNT shall have the meaning set out in Section 5.7.
INDIA ESCROW AMOUNT shall mean the sums paid into the India Escrow Account.
INDIA ESCROW AGREEMENT shall have the meaning set out in Section 5.7.
INDIA WHT shall mean the tax required to be withheld and paid to the Tax
Authorities in India by Purchaser 1 due to the sale and/or transfer of the
Seller's Shares in MAP India.
INFORMATION TECHNOLOGY shall have the meaning set out in Section 7.8.4.
INITIAL WARRANTY ESCROW PERIOD shall have the meaning as defined in 5.6.3(1).
INTELLECTUAL PROPERTY RIGHTS shall mean registered patents, trademarks, trade
names and domain names (including in each case applications).
INTER COMPANY LOAN AGREEMENTS shall have the meaning set out in Section 5.1(6).
INTER GROUP NET PAYABLE shall have the meaning as set forth in Section 5.1(7).
INTER GROUP NET RECEIVABLE shall have the meaning as set forth in Section
5.1(8).
INTRA-GROUP INDEBTEDNESS shall have the meaning set forth in Section 5.10.
IP LICENSE AGREEMENTS shall have the meaning as set out in Annex 4.6(11).
KNOWLEDGE shall have the meaning set forth in Section 8.6.
LEAKAGE PAYMENTS shall have the meaning set forth in Section 12.1.7.
LEASES shall have the meaning set forth in Section 7.16.2.
LIABILITY CAP shall have the meaning set forth in Section 8.3.
LISTED REAL PROPERTY RIGHTS shall have the meaning set forth in Section 7.16.1.
MAP INDIA shall mean Metzeler Automotive Profiles India Private Ltd.
MAP INDIA JVAGREEMENT shall mean the Joint Venture Agreement referred to in
Section 2.3.1.
MAP INDIA PRICE shall have the meaning set forth in Section 14.2.2.
MAP BELARUS shall mean Metzeler Automotive Profiles Baranowitschi GmbH.
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MAPS BENELUX shall mean Metzeler Automotive Profile Systems Benelux NV.
MAPS CHINA INTEREST shall mean the participation held by MAPS Italy in Shanghai
SAIC-Metzeler.
MAPS CHINA PRICE shall have the meaning set forth in Section 15.
MAPS DZIERZONIOW shall mean Metzeler Automotive Profile Systems Dzierzoniow sp
zoo.
MAPS EUROPE GMBH shall mean METZELER Automotive Profile Systems Europe GmbH.
MAPS GERMANY shall mean MAPS GmbH, MAPS Europe GmbH, MTRS GmbH and MKU GmbH.
MAPS GMBH shall mean METZELER Automotive Profile Systems GmbH.
MAPS ITALY shall mean Metzeler Automotive Profile Systems Italy S.p.A.
MAPS PIOTRKOW shall mean Metzeler Automotive Profile Systems Piotrkow sp zoo.
MAPS POLSKA shall mean Metzeler Automotive Profile Systems Polska sp zoo.
MAPS VLM shall have the meaning set forth in Section 2.2.3(4).
MATERIAL ADVERSE CHANGE shall have the meaning set forth in Section 4.2.2.
MATERIAL ADVERSE EFFECT shall mean any change or effect that is materially
adverse to the financial condition, results of operation or assets (i) of MAPS
Germany, or (ii) of MAPS Italy or (iii) of the remainder of the Target Group
Companies taken together.
MATERIAL INTELLECTUAL PROPERTY RIGHTS shall have the meaning as set out in
Section 7.8.1.
MATERIAL AGREEMENTS shall have the meaning set forth in Section 7.5.
MKU GMBH shall mean Metzeler Kautschuk Unterstutzungskasse Gesellschaft mit
beschrankter Haftung.
MTRS GMBH shall mean METZELER Technical Rubber Systems GmbH.
NET REFERENCE WORKING CAPITAL shall mean the amount set out in Section 5.1(5).
NET WORKING CAPITAL shall mean the total net working capital of the Target Group
Companies on a consolidated basis calculated using information from the Target
Companies' management accounts reporting system, prepared consistently with the
calculations set out in Annex 5.1.(5)
PARTIES shall mean both Seller and Purchasers.
PARTY shall mean Seller or a Purchaser.
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PRELIMINARY PURCHASE PRICE shall mean the estimated purchase price calculated by
Seller and Purchasers based on good faith estimates to be agreed by Seller and
Purchasers pursuant to Section 5.2.1.
PURCHASE PRICE ADJUSTMENT shall mean the amount to be paid pursuant to Section
5.3 by either Seller or Purchasers in case the Purchase Price based on the
Closing Date Balance Sheet is higher or lower than the Preliminary Purchase
Price.
PURCHASE PRICE shall have the meaning set forth in Section 5.1.
PURCHASER 1 shall mean Xxxxxx Standard Automotive Inc.
PURCHASER 2 shall mean CSA Germany GmbH & Co KG.
PURCHASERS' ACCOUNT shall mean Purchasers' bank account referred to in Section
5.5.
PWC shall mean PricewaterhouseCoopers.
RBS shall mean The Royal Bank of Scotland plc.
REDUCED PURCHASE PRICE shall have the meaning set forth in Section 5.1.
REGISTERED SHARE CAPITAL OF MAPS EUROPE GMBH shall mean the registered share
capital of MAPS Europe GmbH amounting to EUR 7,700,000.00.
RELEVANT AMOUNT shall have the meaning set forth in Section 9.1.6.
REMEDIATION COSTS shall mean measures (including, but not limited to, reporting,
investigation, monitoring, treatment, remediation and disposal of Environmental
Contamination) which serve the purpose of, and are necessary for, the
containment (Sicherung) and/or removal (Beseitigung) of Environmental
Contamination existing as of Closing and / or the remedy of non-compliance with
applicable Environmental Laws.
SAIC shall mean Shanghai Automotive Industry Corporation (Group).
SECURED FINANCIAL DEBT shall have the same meaning as under Section 4.6(2).
SELLER shall mean Automotive Sealing Systems S.A.
SELLER'S ACCOUNT shall mean the Seller's bank account referred to in Section
5.4.
SELLER'S SHARE IN MAPS EUROPE GMBH shall mean the (single) share into which the
Registered Share Capital of MAPS Europe GmbH is divided.
SELLER'S SHARES IN MAP INDIA shall mean the share of Seller in MAP India
representing 74 % of the Share Capital of MAP India.
SELLER'S SHARES IN MAPS ITALY shall mean all of the shares into which the
Registered Share Capital of MAPS Europe GmbH is divided.
SENIOR FACILITIES AGREEMENT shall mean the senior facilities agreement(s) with
RBS.
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SHANGHAI SAIC-METZELER shall mean Shanghai SAIC-Metzeler Sealing Systems Co Ltd.
SHARE CAPITAL OF MAP INDIA shall mean the share capital of MAP India amounting
to Indian Rupees 22,546,700.
SHARE CAPITAL OF MAPS ITALY shall mean the issued and fully paid up share
capital of MAPS Italy amounting to EUR 22,464,000.00.
SHARES shall mean all of the Seller's shares in the Target Companies.
SIGNING shall mean the signing of this Agreement in due notarial form.
SIGNING DATE shall mean the date on which this Agreement is signed.
SUBSIDIARY / SUBSIDIARIES shall mean the wholly or majority owned subsidiaries
of the Target Companies as referred to in Section 2 and Section 3.3.
SUBSTITUTE PURCHASER shall have the meaning as defined in Section 3.1(2).
SUPPLY AGREEMENTS shall mean the two supply agreements related to the supply of
wire carrier from Xxxxxxxx Ireland Ltd. to (i) MAPS Italy and (ii) MAPS GmbH, as
set out in Annex 4.6(12).
TARGET COMPANIES shall mean MAPS Europe GmbH, MAPS Italy, MAP India.
TARGET GROUP COMPANIES / TARGET GROUP COMPANY shall mean the Target Companies
and their Subsidiaries as set forth in Section 3.3, individually and jointly.
TAX OR TAXES shall have the meaning set forth in Section 9.1.2.
TAX AUTHORITY shall have the meaning as set out in Section 9.1.2
TAX BENEFIT shall mean a benefit by refund, set-off or reduction of Taxes as set
out in Section 9.1.6.
TAX INDEMNITY shall have the meaning as set out in Section 9.1.
TAX INDEMNITY PERIOD shall have the meaning as set out in Section 9.1.
TIME LIMITATIONS shall mean the time limits set out in Section 10.1 of this
Agreement.
TOYODA shall mean Toyoda Gosei Co Ltd.
TOYODA PRE-EMPTIVE RIGHT shall mean Toyoda's pre-emption right regarding the
Seller's Shares in MAP India referred to in Section 14.1.
UPDATED DISCLOSURE LETTER shall mean the letter to be delivered by Seller to
Purchasers at Closing setting forth any circumstances to be disclosed or listed
under the Section 7 or its Annexes thereto and (i) occurring or (ii) to the
extent a Guarantee is qualified by the Seller's Knowledge becoming known by
individuals whose knowledge is defined as being Seller's Knowledge between the
Signing Date and the
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Closing Date. The letter shall also describe any breach of the Seller's
covenants stipulated in Section 12 between the Signing Date and the Closing
Date, which shall not restrict the Purchasers' rights under the Agreement for
such breach of the Seller's covenants.
WARRANTY ESCROW shall have the meaning set out in Section 5.6.
WARRANTY ESCROW ACCOUNT shall have the meaning set out in Section 5.6.
WARRANTY ESCROW AGREEMENT shall have the meaning set out in Section 5.6.
WARRANTY ESCROW FUNDS shall have the meaning set out in Section 5.6.3 (1).
WARRANTY ESCROW PERIOD shall have the meaning set out in Section 5.6.3 (1).
ZHAOTUN shall mean Shanghai Qinpu Zhaotun Collective Asset Management Company.
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ANNEX 1.4 TO SHARE SALE AND PURCHASE AGREEMENT
LIST OF ANNEXES
ANNEX CONTENT
---------- -------------------------------------------------------------------
1.1 Definitions
1.4 List of Annexes
3.1(2) Draft Adherence Deed
4.2.2 Anti-trust Clearances
4.6(11) IP License Agreements
4.6(12) Supply Agreements
5.1 Schedule of intercompany loan agreements
5.1(5) Net Working Capital
5.6 Warranty Escrow Agreement
5.7 India Escrow Agreement
5.8 China Escrow Agreement
5.9 Allocation of the purchase price to the Shares
6.2 Draft Closing Date Balance Sheet
7.5 Disclosed Material Agreements
7.7 List of the 10 largest customers and suppliers
7.8.1 A - Registered IP Rights
B - Licencees of registered IP Rights
7.9.1 Disclosed Litigation
7.9.2 Disclosed Product Warranty or Product Liability Claims
7.11.1 Collective bargaining and works agreements
7.11.2 Disclosures regarding (i) employment contracts containing
incentives that may be triggered by CoC, (ii) limitations to
terminate employment contracts, (iii) obligations re a certain
number of
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employees
7.11.4 Pension or retirement schemes
7.14.2 Restructuring expenditures 2006 and 2007
7.16.1 Listed Real Property Rights
7.16.1(b) List of excerpts from land registers re Listed Real Property Rights
7.16.2 List of lease agreements
7.18 List of insurance policies
7.20 List of subsidies, allowances and other public grants
7.21 Disclosures re environmental matters
8.5(a) Names of the Purchasers and its representatives
8.5(b) Disclosure letter
8.6 Representatives of the Seller
12.1.2(12) Schedule of 2007 planned capital expenditures
12.1.3 German restructuring
13.1 Non-Solicitation of business
15 Concept regarding the combination of the purchaser's current
business with MAPS China
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Signed as attachment to the notarial deed of today - file no. 1197/2007 P of
notary public Xx. Xxxxx Xxxxxxx at Cologne (Germany) -.
Cologne, this 9th and 10th of June, 2007
/s/ Xxxxxx Xxxxxxxxx
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/s/ Xxxxx Xxxxx
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/s/ Xxxxx Xxxxxxx
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