Exhibit 10.1
GLEISS XXXX HOOTZ XXXXXX
RECHTSANWÂLTE
Notarized Version
November 26, 2001
PROJECT CAPITAL
AGREEMENT ON THE
SALE AND PURCHASE OF SHARES
SCHAEFF GROUP OF COMPANIES
NOTARIZATION REQUIRED
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -1-
________________________________________________________________________________
AGREEMENT ON THE SALE AND PURCHASE OF SHARES
between
1. Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00, 00000 Xxxxxxxxxx, Xxxxxxx
- hereinafter "Xxxx Xxxxxxx" -
2. Xxxx Xxxxxxx, Xxxxxxxxxxxx 00, 00000 Xxxxxxxxxx, Xxxxxxx
- hereinafter "Xxxx Xxxxxxx" -
3. Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxxxx 00, 00000 Xxxxxxxxxx Xxxx, Xxxxxxx
- hereinafter "Xxxxxxxxx Xxxxxxx" -
4. Xxxxxx Xxxxxxx, Xxxxxxxxxxx Xxxxxxx 00, 00000 Xxxxxxx, Xxxxxxx
- hereinafter "Xxxxxx Xxxxxxx" -
5. Xxxxxxx Xxxxxx-Xxxxxxx, Xxxxxxxxxx Xxxxxxx 00,00000 Xxxxxxxxxxxxx/
Xxxxxxxxxxxx, Xxxxxxx
- hereinafter "Xxxxxxx Xxxxxx-Xxxxxxx" -
6. Xxxxx Xxxxxxx, Xxxxxxxxxxxxxxxx 00, 00000 Xxxxxx, Xxxxxxx
- hereinafter "Xxxxx Xxxxxxx" -
and
7. TEREX Corporation, 000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxxxxxx
00000, XXX
- hereinafter "TEREX" -
8. PPM Deutschland GmbH TEREX Cranes with its registered office (Sitz) in
Dortmund; registered with the Commercial Register of the Local Court
Dortmund under HRB 12258
- hereinafter "PPM GmbH" -
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -2-
________________________________________________________________________________
Xxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx
Xxxxxx-Xxxxxxx and Xxxxx Xxxxxxx and/or their separate Asset Management
Companies (as defined below) are also referred to hereinafter jointly as
the "Sellers" or individually as a "Seller".
PPM GmbH is also referred to hereinafter as the "Buyer".
Xxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx
Xxxxxx-Xxxxxxx, Xxxxx Xxxxxxx (and/or their separate Asset Management
Companies (as defined below)), TEREX and Buyer are also referred to
hereinafter jointly as the "Parties" or individually as a "Party".
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -3-
________________________________________________________________________________
CONTENTS
Preamble..................................................................4
§ 1 Subject of the Agreement..........................................11
§ 2 Sale..............................................................11
§ 3 Assignment of Sale Shares as of Closing...........................14
§ 4 Assumption of Debt; Indemnification...............................18
§ 5 Purchase Price....................................................21
§ 6 Conditions to Closing, Termination Prior to Closing...............28
§ 7 Conduct of Business after Signing.................................33
§ 8 Closing...........................................................37
§ 9 Adjustment of Purchase Price......................................39
§ 10 Real Estate, Charges of Real Property.............................45
§ 11 Warranties given by Sellers.......................................45
§ 12 Warranty Claims...................................................53
§ 13 Statute of Limitations............................................56
§ 14 Effective Date....................................................56
§ 15 Confidentiality, Announcements....................................57
§ 16 Miscellaneous.....................................................58
Signatures...............................................................64
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -4-
________________________________________________________________________________
Preamble
1. Schaeff Holding KG. Schaeff Holding GmbH & Co. KG is a limited partnership
(Kommanditgesellschaft) duly incorporated under the laws of the Federal
Republic of Germany with registered offices in Langenburg (hereinafter
"Schaeff Holding KG"). Schaeff Holding KG is registered with the Commercial
Register of the Local Court Crailsheim under HRA 380.
(a) The stated capital (Kommanditkapital) of Schaeff Holding KG is fixed
and amounts to DM 5,000,000.00 (in Words: Deutsche Xxxx five million)
(hereinafter the "Stated Capital"). The Sellers are the limited
partners of Schaeff Holding KG having the following interests
(Kommanditanteile) in the Stated Capital:
(a) Xxxx Xxxxxxx: DM 1,500,000.00;
(b) Xxxx Xxxxxxx: DM 1,500,000.00;
(c) Xxxxxxxxx Xxxxxxx: DM 500,000.00;
(d) Xxxxxx Xxxxxxx: DM 500,000.00;
(e) Xxxxxxx Xxxxxx-Xxxxxxx: DM 500,000.00;
(f) Xxxxx Xxxxxxx: DM 500,000.00.
The general partner (Komplementärin) of Schaeff Holding KG, Schaeff
Holding Verwaltung GmbH, has no interest in the Stated Capital. The
interests in the Stated Capital are hereinafter collectively referred
to as the "Schaeff Holding KG Shares" or solely each as "Schaeff
Holding KG Share".
(b) The Sellers' capital contributions on the respective Schaeff Holding
KG Shares as stated above (Einlagen) are equal to the amount
registered with the Commercial Register (Haftsumme). The capital
contributions on the Schaeff Holding KG Shares have been transferred
to Schaeff Holding KG in their full amount. No repayments have been
made.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -5-
________________________________________________________________________________
(c) The purpose of Schaeff Holding KG is the ownership of shares and
interests in other companies, partnerships or businesses as well as
the rendering of services for such companies, partnerships or
businesses, in particular, but not limited to, the finance and
personal management for subsidiaries.
2. Schaeff Holding GmbH. Schaeff Holding Verwaltungs-GmbH is a limited
liability company (Gesellschaft mit beschränkter Haftung) duly incorporated
under the laws of the Federal Republic of Germany with registered offices
in Langenburg (hereinafter "Schaeff Holding GmbH"). Schaeff Holding GmbH is
registered in the Commercial Register of the Local Court of Crailsheim
under HRB 303.
(a) The nominal share capital of Schaeff Holding GmbH amounts to DM
50,000.00 (in words: Deutsche Xxxx fifty thousand) (hereinafter
referred to as the "Schaeff Holding GmbH Nominal Share Capital"). Xxxx
Xxxxxxx and Xxxx Xxxxxxx are the sole shareholders of Schaeff Holding
GmbH. Xxxx Xxxxxxx holds one share in the nominal amount of DM
20,000.00 (in words: Deutsche Xxxx twenty thousand), Xxxx Xxxxxxx
holds one share in the nominal amount of DM 30,000.00 (in words:
Deutsche Xxxx thirty thousand). The shares in the Schaeff Holding GmbH
Nominal Share Capital are hereinafter collectively referred to as the
"Schaeff Holding GmbH Shares" or solely each as "Schaeff Holding GmbH
Share". The initial contributions on the Schaeff Holding GmbH Shares
have been transferred to Schaeff Holding GmbH in their full amount. No
repayments have been made.
(b) Schaeff Holding GmbH is the general partner of Schaeff Holding KG. The
purpose of Schaeff Holding GmbH is the management of the business and
the representation of Schaeff Holding KG as well as of Schaeff
Grundbesitz GbR (as defined hereinafter).
(c) The managing directors (Geschäftsführer) of Schaeff Holding
GmbH are Xxxx Xxxxxxx, Xxxx Xxxxxxx and Xxx Xxxxx.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -6-
________________________________________________________________________________
3. Schaeff Grundbesitz GbR. Schaeff Frundbesitz Gmbh & Co. Gbr is a
partnership under the Civil Code (Gesellschaft bürgerlichen Rechts) duly
incorporated under the laws of the Federal Republic of Germany with
registered offices in Langenburg (hereinafter "Schaeff Grundbesitz GbR").
The rights and obligations of the partners are stipulated in the articles
of partnership of Schaeff Grundbesitz GmbH & Co. GbR as of December 25,
1995 in the form as of December 21, 1998.
(a) The equity capital of Schaeff Grundbesitz GbR which is not fixed
(hereinafter the "Equity Capital") as per December 31, 2000
(calculated pursuant to § 247 German Commercial Code (HGB))
amounts to EUR 6,135,912.51 (in words: Euro six million one hundred
thirty five thousand nine hundred twelve 51/100) (hereinafter the
"Schaeff Grundbesitz GbR Equity Capital as per December 31, 2000").
The Sellers and Schaeff Holding GmbH are the sole partners of Schaeff
Grundbesitz GbR having the following interests (Gesamthandsanteile) in
Schaeff Grundbesitz GbR:
(a) Xxxx Xxxxxxx: 5 %
(b) Xxxx Xxxxxxx: 5 %
(c) Xxxxxxxxx Xxxxxxx: 22.50 %
(d) Xxxxxx Xxxxxxx: 22.50 %
(e) Xxxxxxx Xxxxxx-Xxxxxxx: 22.50 %
(f) Xxxxx Xxxxxxx: 22.50 %
Schaeff Holding GmbH has no interest in the Equity Capital. The
interests in Schaeff Grundbesitz GbR as well as the interest of
Schaeff Holding GmbH in Schaeff Grundbesitz GbR are hereinafter
collectively referred to as the "Schaeff Grundbesitz GbR Shares" or
solely each as "Schaeff Grundbesitz GbR Share". The Parties are in
Agreement that Xxxx Xxxxxxx and Xxxx Xxxxxxx may, between Signing (as
defined below) and Closing (as defined below), each transfer their
Schaeff Grundbesitz GbR Shares in their entirety to Schaeff Holding
KG.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -7-
________________________________________________________________________________
(b) The purpose of Schaeff Grundbesitz GbR is the use and the management
of the real estate owned by Schaeff Grundbesitz GbR (hereinafter the
"Real Estate"), in particular the leasing and letting of the Real
Estate to the companies of the Schaeff Group of Companies (as defined
hereinafter).
4. Schaeff Limited. Schaeff Limited, Rotherham, England, is a company
according to the laws of England and Wales with registered offices in
Rotherham (hereinafter "Schaeff Limited"). The share capital of Schaeff
Limited is GBP 100.00 (in words: one hundred pounds sterling). It is split
into 100 shares of GBP 1.00 each. The sole shareholders of Schaeff Limited
are Xxxx Xxxxxxx and Xxxx Xxxxxxx. Xxxx Xxxxxxx holds 50 shares of GBP 1.00
each, Xxxx Xxxxxxx holds 50 shares of GBP 1.00 each. The shares in the
share capital of Schaeff Limited are hereinafter collectively referred to
as the "Schaeff Limited Shares" or solely each as "Schaeff Limited Share".
The initial contributions on the Schaeff Limited Shares have been
transferred to Schaeff Limited in their full amount. No repayments have
been made.
5. Schaeff & Co. (UK). Schaeff & Co. (UK) (formerly: Webster Schaeff & Co.),
Rotherham, England, is a company according to the laws of England and Wales
with registered offices in Rotherham (hereinafter "Schaeff & Co. UK")
registered with the Company House under No. LP 4918. The share capital of
Schaeff & Co. UK is GBP 46,836.00 (in words: forty six thousand eight
hundred thirty six pounds sterling). It is split into 46.836 shares of GBP
1.00 each. The sole shareholders of Schaeff & Co. UK are the Sellers and
Schaeff Service Limited (as defined hereinafter), holding the following
shares in the share capital of Schaeff & Co. UK:
(a) Xxxx Xxxxxxx: GBP 8,265
(b) Xxxx Xxxxxxx: GBP 8,265
(c) Xxxxxxxxx Xxxxxxx: GBP 7,347
(d) Xxxxxx Xxxxxxx: GBP 7,347
(e) Xxxxxxx Xxxxxx-Xxxxxxx: GBP 7,347
(f) Xxxxx Xxxxxxx: GBP 7,347
(g) Schaeff Service Limited GBP 918
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -8-
________________________________________________________________________________
The shares in the share capital of Schaeff & Co. UK, except the shares held
by Schaeff Service Limited, are hereinafter collectively referred to as the
"Schaeff & Co. UK Shares" or solely each as "Schaeff & Co. UK Share". The
initial contributions on the Schaeff & Co. UK Shares have been transferred
to Schaeff & Co. UK in their full amount. No repayments have been made. For
clarification purposes it is hereby set forth that Schaeff & Co. UK
(formerly: Webster Schaeff & Co.) and Webster Schaeff (as defined in Annex
P-9-A below) (formerly: Schaeff & Co UK) have switched their names.
6. Schaeff Service Limited. Schaeff Service Limited, (formerly Neatwall
Limited), Rotherham, England, is a company according to the laws of England
and Wales with registered offices in Rotherham (hereinafter "Schaeff
Service Limited") registered with the Company House under No. 3046055. The
share capital of Schaeff Service Limited is GBP 2 (in words: two pounds
sterling). It is split into two shares of GBP one (1) each. The sole
shareholders of Schaeff Service Limited are Xxxxxxxxx Xxxxxxx and Schaeff
Holding KG. Xxxxxxxxx Xxxxxxx holds 1 share of GBP one (1), Schaeff Holding
KG holds 1 share of GBP one (1). The share held by Xxxxxxxxx Xxxxxxx in the
share capital of Schaeff Limited is hereinafter referred to as the "Schaeff
Service Limited Share". The initial contributions on the Schaeff Service
Limited Share have been transferred to Schaeff Service Limited in their
full amount. No repayments have been made.
7. Exlo Limited. Exlo Limited, Bangkok, Thailand, is a company according to
the law of Thailand with registered offices in Bangkok (hereinafter "Exlo
Limited"). The authorized share capital of Exlo Limited is THB 5,700,000.00
(in words: Thailand Baat five million seven hundred thousand). It is split
into 27.360 common shares of THB 100 each and into 29.640 preferred shares
of THB 100 each. The common shares are held by Xxxxxx Xxxxxx, Xxxxxxx
Xxxxxxx and Xxxx Xxxxxxx. Xxxxxx Xxxxxx holds 9.120 common shares of THB
100 each, Xxxxxxx Xxxxxxx holds 9.120 common shares of THB 100 each and
Xxxx Xxxxxxx holds 9.120 common shares of THB 100 each. The 29.640
preferred shares are held by four Thais as trustees for Xxxxxx Xxxxxx,
Xxxxxxx Xxxxxxx and Xxxx Xxxxxxx (hereinafter referred to as the
"Trustees").
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -9-
________________________________________________________________________________
The common shares held by Xxxx Xxxxxxx in the authorized share capital of
Exlo Limited are hereinafter collectively referred to as the "Exlo Limited
Shares" or solely referred to as "Exlo Limited Share". Xxxx Xxxxxxx holds
the Exlo Limited Shares as trustee for Schaeff Holding KG based on a
fiduciary contract (hereinafter referred to as the "Fiduciary Contract").
The initial contribution on the Exlo Limited Shares has been transferred to
Exlo Limited in its full amount. No repayments have been made.
8. Parent Companies. The Companies listed under nos. 1 to 6 of this Preamble
are hereinafter referred to collectively as the "Parent Companies" or each
individually as a "Parent Company". Exlo Limited shall not form part of the
Parent Companies but be dealt with separately in Section 2.3 of this
Agreement.
9. Subsidiaries. Schaeff Holding KG holds, as far as otherwise stated
expressively in this Agreement or in Annex P 9-A, all shares and/or has
100% of the interest (as the case may be) of the companies listed in Annex
P 9-A. The Companies listed in Annex P 9-A are hereinafter collectively
referred to as the "Schaeff Holding KG Subsidiaries" or each solely
referred to as a "Schaeff Holding KG Subsidiary" (as the case may be). The
Schaeff Holding KG Subsidiary Xxxx Xxxxxxx KG (as defined in Annex P 9-A)
holds, unless expressly stated in this Agreement or in Annex P 9-B, all
shares and/or has 100% of the interest (as the case may be) of the
companies listed in Annex P-9-B. The companies listed in Annex P 9-B are
hereinafter collectively referred to as the "Xxxx Xxxxxxx KG Subsidiaries"
or each solely referred to as a "Xxxx Xxxxxxx KG Subsidiary" (as the case
may be). The Schaeff Holding KG Subsidiary Xxxxx KG (as defined in Annex P
9-A) holds, unless expressly stated in this Agreement or in Annex P 9-C,
all shares and/or has 100% of the interest (as the case may be) of the
companies listed in Annex P 9-C. The companies listed in Annex P 9-C are
hereinafter collectively referred to as the "Xxxxx KG Subsidiaries" or each
solely referred to as a "Xxxxx KG Subsidiary" (as the case may be). The
Schaeff Holding KG Subsidiaries, the Xxxx Xxxxxxx KG Subsidiaries and the
Xxxxx KG Subsidiaries are hereinafter collectively referred to as the
"Subsidiaries" or each solely referred to as a "Subsidiary" (as the case
may be).
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -10-
________________________________________________________________________________
10. Schaeff Group of Companies. The Parent Companies and the Subsidiaries are
collectively referred to hereinafter as the "Schaeff Group of Companies" or
solely as a "Company of the Schaeff Group of Companies". The Schaeff Group
of Companies is currently engaged in the businesses of the development,
production and sales of compact construction equipment, i.e. (i) mini
excavators (i.e. 1.5 to 4.0 tons), (ii) midi excavators on wheels and
tracks (i.e. up to 11.0 tons) and (iii) wheelloaders from 50hp to 140hp,
the development, production and sales of material handling machines on
wheels and on tracks (i.e. 20.0 to 65.0 tons) and the development,
production and sales of stand up electric lift trucks for the warehousing
industry (hereinafter referred to jointly as the "Business of the Schaeff
Group of Companies").
11. Real Estate. Schaeff Grundbesitz GbR is the owner of, inter alia, the plant
premises used by the Schaeff Group of Companies. The real estate owned by
Schaeff Grundbesitz GbR, the plot number of the respective Land Registers
as well as the encumbrances on the real estate owned by Schaeff Grundbesitz
GbR (hereinafter referred to as the "Encumbrances") are listed in Annex
P-11. The real estate owned by Schaeff Grundbesitz GbR is hereinafter
collectively referred to as the "Real Estate". The Parties are aware of the
Real Estate and the Encumbrances as set forth in Annex P-11. They hereby
dispense with them being listed in this Agreement individually.
12. TEREX. TEREX is a corporation established under the laws of the state
Delaware, USA, based in Westport, Connecticut, USA, with its common stock
listed on the New York Stock Exchange. TEREX is a diversified global
manufacturer and is involved in a broad range of construction,
infrastructure, recycling and mining-related capital equipment under
various brand names.
13. PPM GmbH. PPM GmbH is a Limited Liability Company (Gesellschaft mit
beschränkter Haftung) established under German law with a nominal share
capital (Stammkapital) of DM 2,000,000.00 (in words: Deutsche Xxxx two
million), with its registered office (Sitz) in Dortmund; registered in the
Commercial Register of the Local Court Dortmund under HRB 12258. TEREX is
the sole shareholder of PPM GmbH.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -11-
________________________________________________________________________________
14. Intended Sale and Transfer of Shares. The Sellers intend to sell the entire
Schaeff Group of Companies, except Exlo Limited, to the Buyer. Therefore,
the Sellers intend to sell their shares in the Parent Companies, but not
the Exlo Limited Shares, (hereinafter collectively referred to as the "Sale
Shares"). The shares in the Companies of the Schaeff Group of Companies
held by third parties as indicated in Annex P 9-A, Annex P 9-B and Annex P
9-C shall not be part of the intended sale. The Buyer intends to purchase
the Sale Shares. With respect to the Exlo Limited Shares, the Sellers
intend, however, in accordance with Section 2.3 of this Agreement, to grant
Buyer the right to demand that Sellers, insofar as legally permissible
under applicable law, transfer their respective Exlo Limited Shares to
Buyer (hereinafter "Call Option"). Buyer intends to accept the Call Option.
Exlo Limited Shares are hereinafter therefore jointly referred to also as
the "Option Shares".
Now, therefore, the Parties agree as follows (hereinafter the "Agreement"):
§ 1
Subject of the Agreement
The subject of this Agreement are the Sale Shares including the Sellers'
Clearing Account Claims (as defined hereinafter) and all Assumed Liabilities of
Schaeff Grundbesitz GbR (as defined hereinafter).
§ 2
Sale
2.1 Sale of Sale Shares. The Sellers hereby sell their respective Sale Shares
to the Buyer. The sale shall take economic effect (schuldrechtliche
Wirkung) as of the Effective Date (as defined hereinafter). The sale
includes in particular the following shares:
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -12-
________________________________________________________________________________
(a) the Schaeff Holding KG Shares;
(b) the Schaeff Holding GmbH Shares;
(c) the Schaeff Grundbesitz GbR-Shares;
(d) the Schaeff Limited Shares;
(e) the Schaeff & Co. UK Shares;
(f) the Schaeff Service Limited Share;
The Buyer hereby accepts the sale of the Sale Shares with effect as of the
Effective Date.
2.2 Clearing Accounts (Verrechnungskonten), Right to Dividends. The Parties are
in agreement that the claims of the Sellers against (i) Schaeff Holding KG
that have been entered into the loan account (Darlehenskonto) as defined in
the Schaeff Holding KG Articles of Partnership and (ii) Schaeff Grundbesitz
GbR that have been entered into the capital accounts (Kapitalkonto) as
defined in the Schaeff Grundbesitz GbR Articles of Partnership (e.g. out of
retained profits, shareholder loans and contributions in kind) as of the
Closing Date (as defined hereinafter) (hereinafter referred to jointly as
the "Sellers' Clearing Account Claims") shall be included in the sale of
the respective Sale Shares described above. However and notwithstanding the
foregoing, the Parties are in Agreement that the consolidated profits and
losses of the Schaeff Group of Companies accrued between January 1, 2001
and the Effective Date (as defined hereinafter) shall solely be due to the
Sellers. The Parties are furthermore in agreement that the Sellers' right
to the consolidated profits and losses of the Schaeff Group of Companies
accrued between January 1, 2001 and the Effective Date (as defined
hereinafter) shall, however, not be fulfilled by the Companies of the
Schaeff Group of Companies making corresponding distributions to the
Sellers but shall instead be included in the preparation of the Closing
Date Balance Sheet (as defined below) in accordance with the purchase price
adjustment mechanism set forth in Section 9 of this
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -13-
________________________________________________________________________________
Agreement. For the avoidance of doubt it is hereby set forth, that there
will be, besides the Base Purchase Price Adjustment (as defined below), no
further adjustment of the Base Purchase Price. For clarification purposes
it is furthermore hereby set forth that the consolidated profits and losses
of the Schaeff Group of Companies accrued between January 1, 2001 and the
Effective Date (as defined hereinafter) shall therefore not be entered into
the Clearing Accounts but be included in the calculation of the Aggregated
Closing Equity Capital (as defined hereinafter) in the preparation of the
Closing Date Balance Sheet (as defined below). Furthermore it is hereby set
forth for clarification purposes that the payment claims of the Sellers
which were not entered into the Clearing Accounts and which are resulting
out of the agreements listed in Annex 2.2 shall not be affected by the sale
of the Sellers' Clearing Account Claims, but remain to be fulfilled by the
respective Company of the Schaeff Group of Companies, unless they have been
fulfilled entirely before Closing (as defined hereinafter).
2.3 Call Option. Buyer has the irrevocable right to demand that Xxxx Xxxxxxx
sells and transfers his Exlo Limited Shares representing THB 912.000 of the
authorized share capital of Exlo Limited in his capacity as Trustee for
Schaeff Holding KG and all his rights and obligations under the Fiduciary
Contract with the Trustees holding the preferred shares in Exlo Limited to
Buyer, insofar as such sale and transfer is legally permissible under
applicable law and statutory or similar provisions (hereinafter "the Call
Option"). The Call Option can be exercised at any time between the date
hereof and Closing (as defined hereinafter) by the Buyer informing Xxxx
Xxxxxxx in writing that the Call Option is to be exercised (hereinafter
"Exercising of the Call Option"). Upon receipt of the declaration
concerning the Exercising of the Call Option, Xxxx Xxxxxxx and Buyer shall
undertake all reasonable best efforts to conclude a separate share sale and
transfer agreement in order to sell and transfer title in the Option Shares
and all of Xxxx Xxxxxxx'x rights and obligations under the Fiduciary
Contract with the Trustees holding the preferred shares in Exlo Limited to
Buyer as of Closing (as defined hereinafter) (hereinafter referred to as
the "Option Agreement"). The Option Agreement shall be substantially
similar to the agreement attached to this Agreement as Annex 2.3. The
purchase price for the Option Shares and all of Xxxx Xxxxxxx'x rights and
obligations under the Fiduciary Contract with the Trustees holding the
preferred shares in Exlo Limited to
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -14-
________________________________________________________________________________
Buyer will be Euro 15.000 (in words: Euro fifteen thousand) (hereinafter
referred to as the "Option Price"). The Option Price has to be paid in
addition to the Base Purchase Price (as defined hereinafter). The details
of the sale and the transfer shall be agreed upon between Xxxx Xxxxxxx and
Buyer in the Option Agreement. However, the Parties are aware that the sale
and transfer of the Option Shares and all of Xxxx Xxxxxxx'x rights and
obligations under the Fiduciary Contract with the Trustees holding the
preferred shares in Exlo Limited is subject to restrictions of, in
particular, the laws of Thailand and that therefore a sale and transfer of
the Option Shares and all of Xxxx Xxxxxxx'x rights and obligations under
the Fiduciary Contract with the Trustees holding the preferred shares in
Exlo Limited might be, either in part or in whole, not be possible under
applicable law or statutory or similar provisions. In such case, the
Parties will use reasonable efforts try to seek a solution in order to put
Buyer into a position which is, from an economic perspective, similar to
the position in which Buyer were if a sale and transfer of the Option
Shares and all his rights and obligations under the Fiduciary Contract with
the Trustees holding the preferred shares in Exlo Limited would have
occurred. If such solution could not be obtained without making
unreasonable efforts, Xxxx Xxxxxxx shall be entitled to re-transfer the
Option Shares and all his rights and obligations under the Fiduciary
Contract with the Trustees holding the preferred shares in Exlo Limited to
Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxx or a third party.
§ 3
Assignment of Sale Shares as of Closing
3.1 Assignment. The Sellers shall assign as of Closing (as defined hereinafter)
their respective Sale Shares to the Buyer. The Buyer shall accept such
assignment (hereinafter the "Assignment"). The Sellers shall assign as of
Closing (as defined hereinafter) in particular the following shares to the
Buyer:
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -15-
________________________________________________________________________________
(a) Xxxx Xxxxxxx shall assign the following shares:
(1) his Schaeff Holding KG Share in the nominal amount of DM
1,500,000.00;
(2) his Schaeff Holding GmbH Share in the nominal amount of DM
20,000.00;
(3) his Schaeff Grundbesitz GbR Share representing 5 % of the Equity
Capital, unless these shares have at that time already been
transferred to Schaeff Holding KG between Signing (as defined
hereinafter) and Closing (as defined hereinafter);
(4) his Schaeff Limited Shares representing GBP 50.00 of the share
capital of Schaeff Limited;
(5) his Schaeff
Co. UK Shares representing GBP 8,265.00 of the
share capital of Schaeff & Co. UK.
(b) Xxxx Xxxxxxx shall assign the following shares:
(1) his Schaeff Holding KG Share in the nominal amount of DM
1,500,000.00;
(2) his Schaeff Holding GmbH Share in the nominal amount of DM
30,000.00;
(3) his Schaeff Grundbesitz GbR Share representing 5 % of the Equity
Capital, unless these shares have at that time already been
transferred to Schaeff Holding KG between Signing (as defined
hereinafter) and Closing (as defined hereinafter);
(4) his Schaeff Limited Shares representing GBP 50.00 of the share
capital of Schaeff Limited;
(5) his Schaeff & Co. UK Shares representing GBP 8,265.00 of the
share capital of Schaeff & Co. UK.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -16-
________________________________________________________________________________
(c) Xxxxxxxxx Xxxxxxx shall assign the following shares:
(1) his Schaeff Holding KG Share in the nominal amount of DM
500,000.00;
(2) his Schaeff Grundbesitz GbR Share representing 22.5 % of the
Equity Capital;
(3) his Schaeff & Co. UK Shares representing GBP 7,347.00 of the
share capital of Schaeff & Co. UK;
(4) his Schaeff Service Limited Share representing GBP 1.00 of the
share capital of Schaeff Service Limited.
(d) Xxxxxx Xxxxxxx shall assign the following shares:
(1) his Schaeff Holding KG Share in the nominal amount of DM
500,000.00;
(2) his Schaeff Grundbesitz GbR Share representing 22.5 % of the
Equity Capital;
(3) his Schaeff & Co. UK Shares representing GBP 7,347.00 of the
share capital of Schaeff & Co. UK.
(e) Xxxxxxx Xxxxxx Schaeff shall assign the following shares:
(1) her Schaeff Holding KG Share in the nominal amount of DM
500,000.00;
(2) her Schaeff Grundbesitz GbR Share representing 22.5 % of the
Equity Capital;
(3) her Schaeff & Co. UK Shares representing GBP 7,347.00 of the
share capital of Schaeff & Co. UK.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -17-
________________________________________________________________________________
(f) Xxxxx Xxxxxxx shall assign the following shares:
(1) his Schaeff Holding KG Share in the nominal amount of DM
500,000.00;
(2) his Schaeff Grundbesitz GbR Share representing 22.5 % of the
Equity Capital;
(3) his Schaeff & Co. UK Shares representing GBP 7,347.00 of the
share capital of Schaeff & Co. UK.
The Assignment shall be made upon the terms and conditions set out in this
Agreement, in particular in accordance with the provisions of Section 6 and
Section 8 of this Agreement. The Sale Shares represent 100% of the shares
and/or interest (as the case may be) of each of the Parent Companies. The
Parent Companies own 100% of the shares and/or interest (as the case may
be) of each of the Subsidiaries, unless otherwise indicated expressly in
Annex P 9-A.
3.2 Clearing Accounts (Verrechnungskonten); Right to Dividends. The Parties are
in agreement that the Sellers' Clearing Account Claims shall be included in
the Assignment of the respective Sale Shares described above. However and
notwithstanding the foregoing, the Parties are in Agreement that the
consolidated profits and losses of the Schaeff Group of Companies accrued
between January 1, 2001 and the Effective Date (as defined hereinafter)
shall solely be due to the Sellers. The Parties are furthermore in
agreement that the Sellers' right to the consolidated profits and losses of
the Schaeff Group of Companies accrued between January 1, 2001 and the
Effective Date (as defined hereinafter) shall, however, not be fulfilled by
the Companies of the Schaeff Group of Companies making corresponding
distributions to the Sellers but shall instead be included in the
preparation of the Closing Date Balance Sheet (as defined below) in
accordance with the Base Purchase Price (as defined hereinafter) adjustment
mechanism set forth in Section 9 of this Agreement. For the avoidance of
doubt it is hereby set forth, that there will be, besides the Base Purchase
Price Adjustment (as defined below), no further adjustment of the Base
Purchase Price. For clarification purposes it is hereby set forth that the
consolidated profits and
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -18-
________________________________________________________________________________
losses of the Schaeff Group of Companies accrued between January 1, 2001
and the Effective Date (as defined hereinafter) shall therefore not be
entered into the Clearing Accounts but be included in the calculation of
the Aggregated Closing Equity Capital (as defined hereinafter) in the
preparation of the Closing Date Balance Sheet (as defined below). For
clarification purposes it is furthermore set forth that the aggregated
profits and losses of the Schaeff Group of Companies as from the Effective
Date (as defined hereinafter) shall solely be due to the Buyer and, with
respect to these profits, there shall be no further adjustment of the Base
Purchase Price.
3.3 Approval, Waivers. In their capacity as shareholders of the Parent
Companies, the Sellers individually and jointly hereby give their
irrevocable approval for the sale of the Sale Shares. In addition, the
Sellers, individually and jointly, hereby irrevocably dispense with all
rights of preemption, initial subscription and/or tender they may be
entitled to in view of the Sale Shares. They shall take on or prior to
Closing (as defined hereinafter) all measures and actions necessary in
order to ensure that the Assignment can be executed as of Closing (as
defined hereinafter).
§ 4
Assumption of Debt; Indemnification
4.1 Assumption of Debt. The Buyer shall, with respect to the sale and purchase
of the Schaeff Grundbesitz GbR, assume as of Closing (as defined
hereinafter) by way of the assumption of debt (Schuldübernahme) and in the
place of the Sellers as the previous joint and several debtors, assume the
liabilities of Schaeff Grundbesitz GbR for which the Sellers are personally
liable and that (i) are listed in Annex 4.1, or (ii) are listed in Section
4.2 of this Agreement, or (iii) have arisen or which arise in the ordinary
course of business between October 31, 2001 and the Closing Date (as
defined hereinafter) (hereinafter the "Assumed Liabilities") up to an
amount not to exceed EUR 7,500,000.00 (in words: Euro seven million five
hundred thousand) in the aggregate (hereinafter the "Maximum Amount of
Assumed Liabilities") and thereby release the Sellers from all related
claims of the
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -19-
________________________________________________________________________________
creditors (hereinafter the "Assumption of Debt"). Liabilities of Schaeff
Grundbesitz GbR that are (i) not listed in Annex 4.1 or (ii) are not listed
in Section 4.2 of this Agreement or (iii) which were incurred by Schaeff
Grundbesitz GbR outside the ordinary course of business or (iv) any other
liability of Schaeff Grundbesitz GbR by the assumption of which the amount
of Assumed Liabilities would exceed the Maximum Amount of Assumed
Liabilities will not be assumed by Buyer, even if such liability would have
been incurred by Schaeff Grundbesitz GbR in the ordinary course of
business. The parallel liability of Schaeff Grundbesitz GbR with the
jointly held assets (Gesamthandsvermögen) for the Assumed Liabilities shall
not be affected by the above. The Buyer shall accept the Assumption of
Debt.
4.2 Assumption of Bank Liabilities. Within the framework of the Assumption of
Debt pursuant to Section 4.1 of this Agreement, the Buyer shall as of
Closing (as defined hereinafter) assume in particular the bank liabilities
listed in Annex 4.2 (hereinafter referred to as the "Bank Liabilities"),
which have been also listed in the annual financial statements of Schaeff
Grundbesitz GbR as per December 31, 2000.
4.3 Assumption of Security Agreements. The bank liabilities are partly, but not
exclusively, secured by charges on property (Grundpfandrechte) which form
part of the Encumbrances. Schaeff Grundbesitz GbR and the Sellers on the
one side and the relevant creditors for the bank liabilities secured by the
charges on property on the other side have concluded security agreements
with respect to the charges on property (hereinafter the "Security
Agreements"). Within the framework of the Assumption of Debt pursuant to
Section 4.1, the Buyer therefore shall as of Closing (as defined
hereinafter) assume the existing Security Agreements for the charges on
property with the relevant creditors of the charges on property in place of
the Sellers under the provisions (i) that the Sellers withdraw from the
security agreements existing to date, and that (ii) the charges on property
no longer act as security for any liabilities of the Sellers, and that
(iii) all personal liability of the Sellers arising from the charges on
property is cancelled. The Buyer shall assume the Security Agreements
listed in Annex 4.3.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -20-
________________________________________________________________________________
4.4 Consent of Creditors. The Parties shall inform the creditors of the Schaeff
Grundbesitz GbR in writing immediately upon the conclusion of this
Agreement of the agreed Assumption of Debt which shall be performed as of
Closing (as defined hereinafter). The Parties shall make a joint effort and
shall take all necessary measures, in particular shall submit all necessary
declarations, to ensure that the creditors give their written consent to
the agreed Assumption of Debt. This applies in particular with regard to
the liabilities and security agreements named in Section 4.2 and Section
4.3 of this Agreement. In order to obtain the consent of the creditors for
the Assumption of Debt, the Buyer and TEREX shall use its reasonable best
efforts to offer to the creditors common bank securities as far as
possible, unless the bank liabilities are already secured by way of charges
on property, chattel mortgages or a co-liability on the part of any of the
Companies of the Schaeff Group of Companies. If a creditor does not agree
to the Assumption of Debt pursuant to Section 4 of this Agreement, the
Buyer and TEREX shall, after the performance of the Assumption of Debt as
of Closing, offer to the Sellers common bank securities with respect to the
Assumed Liabilities and indemnify the Sellers at first request from all
demands made personally to the same by the said creditor on the basis of a
liability of Schaeff Grundbesitz GbR (Erfüllungsübernahme, Freistellung auf
erstes Anfordern).
4.5 Indemnification of Sellers. The Buyer shall, upon the Assignment pursuant
to Section 3 of this Agreement becoming legally effective, use its
reasonable best efforts in order to have the respective third Party release
the Sellers furthermore from any guarantee (Garantie), surety (Bürgschaft),
collateral promise (Schuldmitübernahme) or any other security for debt
(e.g. security assignments of life insurance policies) which (i) has been
issued by the Sellers with respect to the liabilities of the Schaeff Group
of Companies and (ii) is listed in Annex 4.5 and indemnify the Sellers upon
first request from all claims and demands made by third parties against
them under any such security for debt.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -21-
________________________________________________________________________________
§ 5
Purchase Price
5.1 Base Purchase Price. The purchase price for the Sale Shares including the
Sellers Clearing Account Claims amounts to a total of EUR 64,679,000.00 (in
words: Euro sixty four million six hundred seventy nine thousand)
(hereinafter the "Base Purchase Price"). The Base Purchase Price shall be
adjusted after Closing (as defined hereinafter) in accordance with the
purchase price adjustment mechanism set forth in Section 9 of this
Agreement.
5.2 Allocation of Base Purchase Price. The Base Purchase Price as well as any
adjustment to the Base Purchase Price in accordance with the provisions of
this Agreement shall be allocated as follows:
(a) The Sellers Clearing Account Claims shall be sold for their nominal
value as of Closing;
(b) A share of EUR 18,000,000.00 (in words: Euro eighteen million) shall
be attributed to the Schaeff Grundbesitz GbR Shares (including the
corresponding Sellers Clearing Account Claims);
(c) The allocation of the remaining part of the Base Purchase Price as
well as any Base Purchase Price Adjustment as defined in Section 9.1
below to each of the Companies of the Schaeff Group of Companies and
to each of the Sellers shall be agreed upon between the Parties
between the date hereof and the Closing Date (as defined hereinafter)
in writing, subject however to (a) and (b) above.
5.3 Due Date. The Base Purchase Price shall become due at the Closing Date (as
defined hereinafter). No interest shall be incurred on it until that date.
5.4 Methods of payment. The Base Purchase Price shall be transferred to the
Sellers as follows:
(a) A partial amount of EUR 51,679,000.00 (in words: Euro fifty one
million six hundred seventy nine thousand) of the Base Purchase Price
(hereinafter the "Cash Amount") shall be transferred to the Sellers
into a
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -22-
________________________________________________________________________________
joint bank account of the Sellers, the details of which (i.e. exact
bank name, sort code and account no. shall be indicated by the Sellers
to Buyer in writing at least five (5) Business Days (as defined below)
prior to Closing (as defined hereinafter). A credit made to the
Omnibus Account shall have the effect of discharging the Buyer's
obligations vis-à-vis the Sellers.
(b) The remaining amount of the Base Purchase Price of EUR 13,000,000.00
(in words: Euro thirteen million) (hereinafter the "Escrow Amount")
shall be paid into a newly established escrow account to be opened
jointly by the Sellers or a Sellers' representative and the Buyer
(hereinafter the "Escrow Account") at the New York branch of a major
international bank or the New York office of a reputable law firm
(hereinafter the "Escrow Agent"), unless otherwise is set forth in
this Agreement. The Escrow Account and the rights of the Sellers or
their representative and the Buyers in request thereof, shall be
governed by the terms of an escrow agreement to be agreed upon between
the Sellers and the Buyer between the date hereof and December 31,
2001 which shall provide that the Sellers or a Sellers' representative
(as the case may be) on the one hand and the Buyer on the other hand
can only dispose of the sums or property on deposit in Escrow Account
on joint instructions (hereinafter referred to as the "Escrow
Agreement"). The details of the Escrow Account is dealt with in
Section 5.6 of this Agreement.
The payment of both the Cash Amount and the Escrow Amount shall be made by
wire transfer in immediately available funds in Euro, free of any bank
charges.
5.5 Replacement of Escrow Amount by TEREX Common Stock. The Sellers may
designate by giving corresponding written notice vis-à-vis the Buyer at
least five (5) Business Days (as defined below) before Closing (as defined
hereinafter) occurs that, instead of the Escrow Amount, a corresponding
number of shares of TEREX common stock (hereinafter referred to as "TEREX
Common Stock") shall serve as escrow amount and shall replace the Escrow
Amount described above. In such case the following shall take place:
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -23-
________________________________________________________________________________
(a) the entire Base Purchase Price shall be paid in its full amount to the
Omnibus Account in accordance with the provisions set forth in Section
5.4 (a) of this Agreement; and in return
(b) such amount of shares in TEREX Common Stock the value of which equals
the Escrow Amount shall be transferred by Sellers, unless otherwise
agreed upon between the Parties in writing, to a newly established
escrow securities deposit to be opened jointly by the Sellers or a
Sellers' representative and the Buyer (hereinafter the "Escrow
Securities Deposit") at the office of the Escrow Agent in New York.
The Escrow Agreement shall govern the Escrow Securities Deposit as
well and shall provide that the Sellers or a Sellers' representative
(as the case may be) on the one hand and the Buyer on the other hand
can only dispose jointly of the Escrow Securities Deposit. The details
of the Escrow Securities Deposit is dealt with in Section 5.7 of this
Agreement. The exact number of shares of TEREX Common Stock to be
transferred to the Escrow Securities Deposit shall be the number of
shares in TEREX Common Stock obtained by dividing the amount of EUR
13,000,000.00 (in words: Euro thirteen million) by the Average TEREX
Common Stock Price (as defined hereinafter) in Euro and rounding up to
the nearest whole number of shares of TEREX Common Stock (hereinafter
referred to as the "TEREX Escrow Stock"). In order to make such
division, the average price of the TEREX Common Stock in Euro will be
determined in two consecutive steps as follows:
(i) The average price of one share of TEREX Common Stock in United
States Dollars will be determined by calculating the average of
the daily closing sale prices of TEREX Common Stock on the
consolidated report of trading of the New York Stock Exchange
(hereinafter "NYSE") issued for the twenty (20) consecutive
trading days ending on the day which is five (5) Business Days
(as defined below) immediately before the Closing Date (as
defined hereinafter) (hereinafter the "Average TEREX Common Stock
Price").
(ii) The Average TEREX Common Stock Price in United States Dollars
shall then be converted into Euro on the basis of the
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -24-
________________________________________________________________________________
average official Euro Foreign Exchange Reference Rates between
central banks within and outside the European System of Central
Banks issued and published on a daily basis by the European
Central Bank for the twenty (20) consecutive trading days ending
on the day which is five (5) Business Days (as defined below)
immediately before the Closing Date (as defined hereinafter).
"Business Day" in terms of this Agreement shall mean any day that is
not a Saturday or Sunday or a day on which banks located in New York
City are authorized or required to be closed. The calculation of the
number of shares in TEREX Common Stock to be delivered on Closing (as
defined hereinafter) as TEREX Escrow Stock shall be determined by the
Parties at least three days before the Closing Date (as defined
hereinafter).
(c) Adjustment of TEREX Common Stock Sale Shares. If, for whatever reason
during the time period in which the Average TEREX Common Stock Price
will be calculated pursuant to Sub-Section (b) above, TEREX (i) splits
or combines the shares of its common stock outstanding; (ii) merges or
consolidates with any corporation in a transaction in which the other
corporation is the surviving entity; (iii) reorganizes, recapitalizes
or reclassifies any of the shares of its common stock; or (iv) effects
any transaction having a similar effect, the Parties are obligated to
co-operate in order to replace the calculation method set forth in
Sub-Section (b) above by another calculation method, which corresponds
to the sense and purpose of the calculation method initially set forth
in Sub-Section (b) above.
5.6 Escrow Account. The Escrow Amount paid into the Escrow Account shall serve
to settle warranty claims on the part of the Buyer against the Sellers on
the basis of Section 11 and Section 12 of this Agreement (hereinafter
"Warranty Claims"). The following shall apply with respect to the Escrow
Account, and the Escrow Agreement shall so provide (as the case may be):
(a) Any disposal over the Escrow Account or the Escrow Amount shall only
be made jointly by the Sellers or a Seller's representative (as the
case may be) and the Buyer by giving written instruction to the Escrow
Agent. The Parties shall instruct the Escrow Agent accordingly.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -25-
________________________________________________________________________________
(b) The Parties shall take all measures reasonably required, in particular
make all necessary declarations to the Escrow Agent, in order to
ensure that such amount of the Escrow Amount plus any and all interest
accrued on such amount shall be transferred from the Escrow Account to
Buyer which is required to completely satisfy Warranty Claims if and
when (i) such Warranty Claims have been acknowledged by Sellers in
writing or, to the extent the Sellers did not acknowledge such
Warranty Claims, (ii) such Warranty Claims have been granted to Buyer
by a final arbitral award of the arbitration tribunal pursuant to
Section 16.6 of this Agreement (hereinafter referred to jointly as a
"Warranty Case").
(c) The Escrow Account shall be closed and the entire Escrow Amount
including any and all interest accrued on the Escrow Account shall be
transferred to the Omnibus Account or any other bank account
designated by the Sellers in writing, if, until June 30, 2003, (i)
neither Sellers have acknowledged any Warranty Claims asserted against
them by Buyer in writing (ii) nor Buyer has instituted arbitration
proceedings against one or several of the Sellers in accordance with
Section 16.6 of this Agreement with respect to Warranty Claims. If, on
or before June 30, 2003, Sellers have acknowledged any Warranty Claims
asserted against them by Buyer in writing, the provisions of
sub-section (b) of this Section 5.6 shall apply and only the remaining
amount of the Escrow Amount plus any and all interest accrued on such
remaining amount shall be transferred to the Omnibus Account or any
other bank account designated by the Sellers in writing. If, on or
before June 30, 2003, Buyer has instituted arbitration proceedings
against one or several of the Sellers in accordance with Section 16.6
of this Agreement with respect to Warranty Claims, such amount of the
Escrow Amount plus any and all interest accrued on such amount shall
remain on deposit in the Escrow Account which is required in order to
completely satisfy such Warranty Claims until a final arbitration
award is issued by the arbitration tribunal and only the remaining
amount of the Escrow Amount plus any and all interest accrued on such
remaining amount shall be transferred to the Omnibus Account or any
other bank account designated by the Sellers in writing. The amount
remaining on deposit in the Escrow Account plus any and all
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -26-
________________________________________________________________________________
interest accrued on such amount shall be transferred to Sellers and
Buyer in accordance with the final arbitral award.
5.7 Escrow Securities Deposit. As a general rule, the provisions of Section 5.6
of this Agreement shall apply analogously with respect to the Escrow
Securities Deposit, with the following particularities, and the Escrow
Agreement shall so provide (as the case may be):
(a) If and when a Warranty Case occurs, the number of shares of the TEREX
Escrow Stock required to fulfill the underlying Warranty Claim shall
be calculated in the same manner as described in Section 5.5 (b) and
(c) of this Agreement which shall apply analogously, except that the
decisive date for the calculation of the average price of the TEREX
Common Stock in Euro and the average United States US Dollar - Euro
exchange rate shall not be the Closing Date but the first Business Day
of the calendar week following the Date on which the Warranty Case had
occurred. In such an event, the Buyer and Sellers, or their
representative shall instruct the Escrow Agent to execute such stock
powers as are necessary for the transfer and assignment to Buyer the
appropriate number of shares of the TEREX Escrow Stock, which shall be
removed from each individual Seller's shareholdings in the same
proportion in which the original deposit of shares into the Escrow
Securities Deposit was made.
(b) If and when a Warranty Case occurs, the Sellers may within a time
period of ten (10) working days after Buyer has requested in writing
that the underlying Warranty Claim is fulfilled designate at their
choice to fulfill the underlying Warranty Claim by making a
corresponding payment in immediately available funds in Euro to a bank
account designated by Buyer in writing instead of releasing the number
of shares of the TEREX Escrow Stock required to fulfill such Warranty
Claim to Buyer. In such case, the Buyer is obliged to take all
measures reasonably required, in particular make all necessary
declarations to the Escrow Agent, in order to ensure that the number
of shares of the TEREX Escrow Stock required to fulfill such Warranty
Claim is released from the Escrow Securities Deposit and transferred
in the same proportion in which the original
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -27-
________________________________________________________________________________
deposit of shares into the Escrow Securities Deposit was made to a
securities deposit designated by the Sellers in writing without delay.
(c) The Sellers may at any time decide to replace the TEREX Escrow Stock
in whole or in part by making a payment in immediately available funds
in Euro in the corresponding amount into a newly established escrow
account. The provisions of Section 5.4 lit (b) and Section 5.6 shall
apply mutadis mutandis with respect to such escrow account. In such
case, the Buyer is obliged to take all measures reasonably required,
in particular make all necessary declarations to the Escrow Agent, in
order to ensure that the corresponding number of shares of the TEREX
Escrow Stock is released from the Escrow Securities Deposit and
transferred to a securities deposit designated by the Sellers in
writing without delay. The number of shares of the TEREX Escrow Stock
to be released from the Escrow Securities Deposit shall be calculated
in the same manner as described in Section 5.5 (b) and (c) of this
Agreement which shall apply analogously. For the avoidance of doubt it
is hereby set forth that the cash payment to have one share of TEREX
Escrow Stock released from the Escrow Securities Deposit is an amount
equal to the Average TEREX Common Stock Price in Euro. For the
avoidance of doubt, it is hereby also set forth that the maximum cash
payment required to release the entire TEREX Escrow Stock is therefore
EUR 13,000,000.00 (in words: Euro thirteen million).
5.8 Value Added Tax. The Buyer shall pay any applicable Value Added Tax (VAT),
if any, under any legislation in addition to and together with the Base
Purchase Price and any increase of the Base Purchase Price in accordance
with the terms and conditions of this Agreement. However, the Parties shall
use reasonable best efforts to ensure, to the extent this is possible and
permissible, that the sale and transfer of the Sale Shares does not become
subject to VAT under the applicable VAT legislation.
5.9 Restriction to Right to Set Off. Buyer shall not be entitled to refuse all
or in part its performance obligations under this Agreement (especially its
obligation to pay the Base Purchase Price and any increase of the Base
Purchase Price in accordance with the provisions of this agreement) (i.e.
exclusion of Right of Lien/Unperformed Contract). Buyer's right to set off
any claim (according to
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -28-
________________________________________________________________________________
§§ 387 ff. German Civil Code (BGB)) against the Base Purchase
Price and any increase of the Base Purchase Price in accordance with the
provisions of this Agreement is excluded (i) unless such claim of the Buyer
is either acknowledged as such by the Sellers in writing or recognized by a
final court decision or (ii) unless otherwise has been agreed upon between
the Parties in writing.
§ 6
Pre-Closing Actions, Conditions to Closing, Termination Prior to Closing
6.1 Pre-Closing Actions. Immediately following the Execution of this Agreement,
the Sellers and the Buyer (where required) shall perform or, with respect
to sub-section (a) (where third party actions are required) and (c) below,
use their reasonable best efforts to have performed, before the Closing
Date and in close co-operation with the Buyer, the following pre-closing
actions (hereinafter referred to as the "Pre-Closing Actions"):
(a) Other Shareholders' Consent. All third parties who are a shareholder
of any of the Companies of the Schaeff Group of Companies that are
listed in Annex 6.1-A (referred to hereinafter as "Other
Shareholders") have provided their written consent to the Sale and
Transfer of the Sale Shares, insofar this is necessary and have waived
all rights of preemption, initial subscription and/or tender they may
be entitled to in view of the Sale Shares, as stipulated in the
respective Articles of Association, if any;
(b) Resignation of Sellers. Certain of Sellers designated by Buyer in
writing at least within 10 working days before the Closing Date (as
defined hereinafter) shall have, with effect as of the Closing Date
(as defined hereinafter) resigned by giving corresponding written
notice or been removed from their office (hereinafter the "Resigning
Sellers"). The Resigning Sellers on the one hand and the corresponding
Company of the Schaeff Group of Companies on the other hand shall
have, in addition and with effect as of the Closing Date entered into
a severance agreement to terminate the employment
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -29-
________________________________________________________________________________
agreement of such Resigning Seller with the Schaeff Group of Companies
with effect as of the Closing Date. The Sellers' shall ensure that
none of the Companies of the Schaeff Group of Companies, nor Buyer or
TEREX will incur any compensation, cost, expense, liability or
obligation in connection with the Sellers' compliance of this
Pre-Closing Action, except with respect to the pension agreements of
Xxxx Xxxxxxx and Xxxx Xxxxxxx which shall not be affected by any such
measure and remain in full force without causing any breach or
violation of any of the representations and warranties, covenants or
other obligations of the Sellers set forth in this Agreement;
(c) Escrow Agreement. The Buyer, the Seller or a representative of the
Sellers, and the Escrow Agent shall enter into, sign and deliver the
Escrow Agreement. If, for whatever reason, the Escrow Agreement can
not be signed and delivered five (5) Business Days before Closing (as
defined below), the provisions of Section 6.6 shall apply.
The Buyer may at any time between the date hereof and the Closing Date
waive the performance of the Pre-Closing Actions set forth in (a) and (b)
by making a corresponding declaration in writing vis-à-vis the Sellers.
6.2 Conditions to Buyer's Obligations. The obligations of the Buyer under this
Agreement to accept the assignment of the Sale Shares and to consummate the
other transactions contemplated hereby shall be subject to the following
conditions:
(a) Anti Trust Clearance. The pertinent merger control and anti-trust
authorities have, if necessary, approved the transactions contemplated
by this Agreement. For the purpose of this provision the approval by
the pertinent merger control and anti-trust authorities shall have
occurred on the date when (i) either Party receives a written notice
of the pertinent merger control and anti-trust authorities stating
that the preconditions under which this transaction may be prohibited
are not fulfilled or (ii) after the lapse of the time period within
the relevant merger control and anti-trust authorities may prohibit
this transaction;
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -30-
________________________________________________________________________________
(b) Other Governmental Approvals. All material governmental filings,
notices and authorizations, consents and approvals, if any, to permit
the consummation of the transactions contemplated by this Agreement
shall have been either made or received, as the case may be;
(c) Litigation. No action or proceeding shall have been commenced before a
court or other governmental body to restrain or prohibit any of the
transactions contemplated by this Agreement;
(d) Accuracy of Representations and Warranties. The Representations and
Warranties given by the Sellers in Section 11 of this Agreement are
essentially accurate and true as of the Closing Date (as defined
hereinafter), except to the extent that any such Representations and
Warranties were made as of a specified date and as to such
Representations and Warranties the same shall continue on the Closing
Date (as defined hereinafter) to have been essentially accurate and
true as of the specific date. A Representation shall cease to be
essentially accurate and true only if its inaccuracy materially
adversely affects the situation of the Schaeff Group of Companies,
taken as a whole, relating to its assets, finance and earnings
position.
The Buyer is entitled to waive all or several conditions to Closing (as
defined hereinafter) set out in this Section 6.2, except the condition set
out in Section 6.2 lit (a), in whole or in part by making a corresponding
written declaration to the Sellers at any time prior or on the Closing Date
(as defined hereinafter).
6.3 Conditions to Sellers' Obligations. The obligations of the Sellers under
this Agreement to assign the Sale Shares and to consummate the other
transactions contemplated hereby shall be subject to the following
conditions:
(a) Anti Trust Clearance. The pertinent merger control and anti-trust
authorities have, if necessary, approved the transactions contemplated
by this Agreement. For the purpose of this provision the approval by
the pertinent merger control and anti-trust authorities shall have
occurred on the date when (i) either Party receives a written notice
of the pertinent merger control and anti-trust authorities stating
that the preconditions under which this transaction may be prohibited
are not
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -31-
________________________________________________________________________________
fulfilled or (ii) after the lapse of the time period within the
relevant merger control and anti-trust authorities may prohibit this
transaction;
(b) Other Governmental Approvals. All material governmental filings,
notices and authorizations, consents and approvals, if any, to permit
the consummation of the transactions contemplated by this Agreement
shall have been either made or received, as the case may be;
(c) Litigation. No action or proceeding shall have been commenced before a
court or other governmental body to restrain or prohibit any of the
transactions contemplated by this Agreement.
The Sellers are entitled to waive all or several conditions to Closing (as
defined hereinafter) set out in this Section 6.3, except the Condition set
out in Section 6.3 lit (a), in whole or in part by making a corresponding
written declaration to the Sellers at any time prior or on the Closing Date
(as defined hereinafter).
6.4 Parties' Co-operation. Pending Closing (as defined hereinafter), the
Parties will co-operate fully and shall use their reasonable best efforts
to ensure that all Conditions to Closing (as defined hereinafter) as set
out in this Section 6 (hereinafter referred to as the "Conditions to
Closing") and all Pre-Closing Actions are fulfilled without delay after the
Signing (as defined hereinafter) of this Agreement. In particular they
shall provide each other, as far as this is reasonable, with all
information and assistance required to fulfil the Conditions to Closing and
the Pre-Closing Actions. With respect to the clearance of all competent
merger control and cartel authorities, if any, the Parties shall use their
best endeavors and shall co-operate fully as well to obtain such clearance.
However, the work on the clearance of all competent merger control and
cartel authorities is primarily entrusted to the Buyer's outside legal
counsel who shall take all necessary measures and make all necessary
filings without delay and will co-operate with the Seller's outside legal
counsel.
6.5 Termination prior to Closing. If the Conditions to Closing and the
Pre-Closing Actions as set out in this Section 6 have not been met or
waived on or prior to May 31, 2002 (hereinafter "Cut Off Date"), the Buyer
on the one hand and the Sellers jointly on the other hand shall be entitled
to terminate this Agreement with immediate effect for all Parties by
notifying all other Parties. In this case,
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -32.-
________________________________________________________________________________
Section 15.2; Section 16.1; Section 16.2; Section 16.3; Section 16.6;
Section 16.7; Section 16.8, Section 16.9 and Section 16.10 shall continue
to apply. Section 15.1 shall in such case apply mutadis mutandis for the
Buyer. As an exception from the foregoing, the Sellers shall not be
entitled to terminate this Agreement if and when the Pre-Closing Actions
set forth in Section 6.1 (a) and (b) above have not been met or waived by
Buyer, either in whole or in part. As an additional exception from the
foregoing, neither Party shall be entitled to delay Closing or terminate
this Agreement, if and when the Pre-Closing Action set forth in Section 6.1
(c) of this Agreement (delivery of the Escrow Agreement) is not fulfilled
within time, with all other Pre-Closing Actions or Pre-Closing Actions
being either met or waived by the respective Party. This Agreement may also
be terminated at any time by mutual written consent of the Parties to this
Agreement. The Cut Off Date may be postponed at any time by mutual written
consent of the Parties to this Agreement as well.
6.6 Non Delivery of Escrow Agreement. If for whatever reason, the Pre-Closing
Action set forth in Section 6.1 (c) of this Agreement (delivery of the
Escrow Agreement) is not completely fulfilled within time while all other
Pre-Closing Actions or Pre-Closing Conditions are being either met or
waived by the respective Party, the Closing (as defined hereinafter) shall
occur. Already if and when it becomes apparent, that the Escrow Agreement
can not be delivered within time, the Parties shall use their reasonable
best efforts, co-operate fully and take all actions and measures required
or appropriate to establish - before Closing (as defined hereinafter)
occurs - a new bank account to be opened jointly by the Seller's or a
Seller' representative and the Buyer or a Buyer's representative at a major
German bank (hereinafter referred to as the "Suspense Escrow Account"),
with it to be ensured that the Seller's or the Seller' representative (as
the case may be) on the one hand and the Buyer or a Buyer's representative
(as the case may be) on the other hand can only dispose jointly of the sums
paid into the Suspense Escrow Account (so-called "und-Konto"). In such
case, on Closing (as defined hereinafter) and deviating from Section 5.4
(b) above, the Escrow Amount shall be paid into the Suspense Escrow Account
and remain there, until the Escrow Agreement has been delivered and the
Escrow Account respectively the Escrow Securities Deposit are in place.
Section 5.6 shall apply analogously with regard to the Suspense Escrow
Account. The right of the Sellers to replace the Escrow Amount by the TEREX
Escrow Stock shall remain unaffected, but be suspended (gehemmt)
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -33-
________________________________________________________________________________
until the Escrow Agreement is being delivered. The Parties shall in such
case, however, before, on and after Closing (as defined hereinafter), use
their reasonable best efforts, fully co-operate and take all measures and
actions required or appropriate in order to achieve a situation which is
similar to the situation that would have occurred, if the Pre-Closing
Action set forth in Section 6.1 (c) of this Agreement (delivery of the
Escrow Agreement) had been met in time. The Parties shall in particular (i)
continue to use their reasonable best efforts, fully co-operate and take
all measures and actions required or appropriate in order to deliver the
Escrow Agreement as soon as possible, and as soon as the Escrow Agreement
has been delivered and the Escrow Account, respectively the Escrow
Securities Deposit, have been established (ii) use their reasonable best
efforts, fully co-operate and take all measures and actions required or
appropriate in order to have the Escrow Amount transferred to the Escrow
Account. If the Sellers have designated to replace the Escrow Amount by a
corresponding number of TEREX Common Stock as foreseen in Section 5.5
above, the Parties shall furthermore use their reasonable best efforts,
fully co-operate and take all measures and actions required or appropriate
in order to have the TEREX Escrow Stock delivered to the Escrow Securities
Deposit and to have the Escrow Amount transferred from the Suspense Escrow
Account to the Omnibus Account or any other bank account designated by the
Sellers vis-à-vis the Buyer in writing. The delivery of the TEREX Escrow
Stock to the Escrow Agent and the transfer of the Escrow Amount from the
suspense Escrow Account to the Omnibus Account or another bank account (as
the case may be) shall be a concurrent condition (Erfüllung Zug um Zug).
§ 7
Conduct of Business after Signing
7.1 General. Between the date hereof and the Closing Date (as defined
hereinafter) the Sellers will ensure that the business of the Schaeff Group
of Companies will be conducted with the ordinary course of business and the
care of a prudent businessman consistent with past practices. The Sellers
shall promptly notify the Buyer of any event which has a material adverse
effect on the Schaeff Group of Companies. The Sellers will take all
reasonable measures to
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -34-
________________________________________________________________________________
ensure that during the period between the date hereof and the Closing Date
(as defined hereinafter) the management team listed in Annex 7.1 remains in
charge of conducting the business of the Schaeff Group of Companies.
7.2 Consultation. If not to be treated differently as a result of consultations
between the Parties, the Sellers shall, with respect to the Companies of
the Schaeff Group of Companies and in the period between the date hereof
and the Closing Date (as defined hereinafter):
(a) use their reasonable best efforts to ensure that the Companies of the
Schaeff Group of Companies:
(i) preserve intact their business organizations;
(ii) keep available until the Closing Date (as defined hereinafter)
the services of their present officers, employees and agents;
(iii) preserve the relationship with its material suppliers,
customers, licensors and licensees and others having material
business dealings with the Schaeff Group of Companies such that
its businesses will not be materially impaired;
(b) with the due care of a business man (gebotene Sorgfalt eines
Kaufmanns) ensure that the Companies of the Schaeff Group of Companies
(i) operate their businesses only in the ordinary course of business
and consistent with past practices;
(ii) maintain their properties, machinery and equipment in sufficient
operating condition and repair to enable them to operate their
businesses in all material respects in the manner in which the
businesses are currently operated;
(iii) continue all material existing insurance policies (or comparable
insurance) of or relating to the Schaeff Group of Companies in
full force and effect;
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -35-
________________________________________________________________________________
(iv) do not increase Interest Bearing Debt (as defined hereinafter) in
the time period between the date hereof and January 1, 2002 above
the aggregate of EUR 53,430,000.00 (in words: Euro fifty three
million four hundred thirty thousand) and in the time period
between January 1, 2002 and the Closing Date above the aggregate
of EUR 54,708,000.00 (in words: Euro fifty four million seven
hundred eight thousand). The amount of Interest Bearing Debt in
terms of this provision shall be calculated in two consecutive
steps. First, all such kind of debts which are listed in the
consolidated balance sheet for the Schaeff Group of Companies as
per December 31, 2000 (which is attached to this Agreement as
Annex 9.1) as:
- payables due to commercial banks (Verbindlichkeiten
gegenüber Kreditinstituten); and
- payables from the acceptance of drafts and the issuance of
promissory notes (Verbindlichkeiten aus der Annahme
gezogener Wechsel und der Ausstellung eigener Wechsel)
shall be added. Then, in the second step, all checks, cash in
hand, deposits with Federal Bank and the Federal Postal System
Bank and deposits with commercial banks (Schecks, Kassenbestand,
Bundesbank- und Postgiroguthaben, Guthaben bei Kreditinstituten)
shall be deducted in order to determine the amount of Interest
Bearing Debt as per the relevant date;
(c) ensure that Sellers or the Companies of the Schaeff Group of Companies
(i) do not amend the articles of associations, partnership agreements
or other relevant organizational documents of the Companies of
the Schaeff Group of Companies, except as required by law;
(ii) do not declare, set aside or pay any dividends or make other
distributions of profits or redeem, purchase or otherwise acquire
any share capital, or make any repayment of shareholder loans
granted by the Sellers to any of the Companies of the Schaeff
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -36-
________________________________________________________________________________
Group of Companies, except as expressly set forth in this
Agreement;
(d) ensure that the Companies of the Schaeff Group of Companies
(i) do not sell, assign, voluntarily encumber, grant a security
interest in or license with respect to, or dispose of, any of
their respective assets, tangible or intangible, or incur any
material liabilities, except as in the ordinary course of
business or except as disclosed in Annex 7.2-D;
(ii) do not discount receivables or auction assets below cost except
in the ordinary course of business.
7.3 Resignation of Officers and Directors. The Buyer may designate between the
date hereof and the Closing Date (as defined hereinafter) that certain of
the Officers and Directors listed in Annex 7.3 shall be removed from their
office with effect as of the Closing Date (as defined hereinafter). The
Buyer may also designate that in such case, the employment contract of such
Director and Officer be terminated by the respective Company of the Schaeff
Group of Companies in accordance with the terms and provisions of such
employment contract and applicable German law. The Sellers will, between
the date hereof and the Closing Date (as defined hereinafter) use their
reasonable best efforts to comply with such request. Any compensation,
cost, expense, liability or obligation of any of the Companies of the
Schaeff Group of Companies incurred with the Sellers' compliance of this
provision shall be borne solely by the Companies of the Schaeff Group of
Companies and shall not cause any breach or violation of any of the
representations and warranties, covenants or other obligations of the
Sellers set forth in this Agreement nor shall it have any impact or be
reflected on the Closing Date Balance Sheet (as defined below) and the
calculation of the Purchase Price Adjustment (as defined below). In order
to achieve the latter:
(a) Accruals to be made under applicable accounting principles for any
compensation, cost, expense, liability or obligation to be paid by any
of the Companies of the Schaeff Group of Companies due to the
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -37-
________________________________________________________________________________
Sellers' compliance with this provision shall, for the purpose of the
calculation of the Base Purchase Price Adjustment (as defined below),
not be made in the Closing Date Balance Sheet (as defined
hereinafter);
(b) the Closing Equity Capital (as defined hereinafter) shall be increased
by an amount equal to the amount of any compensation, cost, expense,
liability or obligation already paid by any of the Companies of the
Schaeff Group of Companies due to the Sellers' compliance with this
provision before or on December 31, 2001.
§ 8
Closing
8.1 Closing Date. After the signing of this Agreement including its Annexes
(hereinafter referred to as the "Signing"), the performance of the
Assignment, the Assumption of Debt and the Payment of the Base Purchase
Price (hereinafter referred to as the "Closing") shall take place on (i)
the fifth Business Day after all Conditions to Closing as set out in
Section 6 of this Agreement have been either fulfilled or waived by the
respective Party or (ii) if the Parties agree in writing on a different
date on which Closing shall occur (hereinafter referred to as the "Closing
Date"). However, notwithstanding the foregoing provision, the Closing shall
take place at the earliest on January 2, 2002.
8.2 Time and Place of Closing. Closing shall take place on the Closing Date at
the offices of Gleiss Xxxx Hootz Xxxxxx in Frankfurt at 9:00 a.m. (local
time) or at any other place and time agreed upon between the Parties in
writing and to the extent required, at further locations as agreed by the
Parties in writing.
8.3 Actions as of Closing. As of Closing the following actions and measures
shall be taken:
(a) The Parties shall sign the declaration attached as Annex 8.3-A stating
that the Conditions to Closing as set out in Section 6 of this
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -38-
________________________________________________________________________________
Agreement have been either met or waived completely (hereinafter the
"Declaration of Completion"). In the Declaration of Completion the
Sellers shall expressly certify that the Closing Condition set forth
in Section 6.2 (d) has been met. Buyer's acceptance of such
certification in the Declaration of Completion shall, however, not
constitute a waiver by Buyer of any of its rights out of the
Representations and Warranties given under Section 11 of this
Agreement;
(b) Sellers will deliver to Buyer an Update Disclosure Schedule with
regard to the Annexes attached to this Agreement disclosing all
relevant matters that have occurred between the date hereof and
Closing (hereinafter the "Update Disclosure Schedule"). The Update
Disclosure Letter shall not contain any such matters that have
occurred already before the date hereof;
(c) The Parties shall, in order to execute and perform the Assignment and
the Assumption of Debt, conclude a separate Closing Agreement by means
of which the Sale Shares shall be assigned and transferred from the
respective Seller(s) to Buyer and by means of which the Assumed
Liabilities are assumed by the Buyer entirely (hereinafter referred to
as the "Closing Agreement"). However, it has to be ensured that the
Closing Agreement contains provisions in order to ensure that the
Assignment and the Assumption of Debt shall become effective only if
and when (aufschiebende Bedingung in terms of § 158 paragraph 1
German Civil Code - BGB) the Base Purchase Price has been paid
completely and irrevocably into the Omnibus Account and the Escrow
Account or the Suspense Escrow Account (as the case may be) including
any accrued VAT, if any;
(d) Buyer shall pay the Base Purchase Price to the Sellers by transferring
(i) the Cash Amount in its full amount including VAT, if any, in
immediately available funds free of any bank charges to the Omnibus
Account and (ii) the Escrow Amount as agreed upon in Section 5.1 and
Section 5.4 of this Agreement to the Escrow Account or the Suspense
Escrow Account (as the case may be), however, subject to the Sellers
right set forth in Section 5.5 of this Agreement. If the Sellers (i)
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -39-
________________________________________________________________________________
exercise their right set forth in Section 5.5 and (ii) this right is
not suspended in accordance with Section 6.6 above, the entire Base
Purchase Price shall be paid by Buyer to Sellers in its full amount
including VAT, if any, in immediately available funds free of any bank
charges to the Omnibus Account and the appropriate number of shares of
TEREX Common Stock shall be delivered by Sellers to the Securities
Deposit Account. The Buyer shall provide the Sellers with a
confirmation of the Buyer's bank that the Buyer has given irrevocable
instruction to its bank to transfer the Cash Amount and the Escrow
Amount in immediately available funds, free of any bank charges to the
Omnibus Account and the Escrow Account or the Suspense Escrow Account
(as the case may be) as agreed upon in Section 5.4 of this Agreement,
however, subject to the Sellers right set forth in Section 5.5 of this
Agreement (hereinafter referred to as the "Bank Certification"). The
signing of the Closing Agreement and the submission of the Bank
Certification shall be a concurrent condition (Erfüllung Zug um Zug);
(e) The Parties shall sign an application for registration with the
Commercial Register with respect to the Assignment of the Schaeff
Holding KG Shares in order to have the registration of the Buyer as
limited partner with the Commercial Register, indicating the singular
succession (Sonderrechtsnachfolge), becoming effective without delay;
(f) The Parties shall take all further actions and measures required under
applicable law and make all necessary declarations in order to perform
the Assignment and the Assumption of Debt.
§ 9
Adjustment of Base Purchase Price
9.1 Adjustment of Base Purchase Price. The Base Purchase Price for the Sale
Shares is based on the audited consolidated financial statements as per
December 31, 2000 of Schaeff Group of Companies submitted by the Sellers
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -40-
________________________________________________________________________________
(hereinafter "Financial Statement as per December 31, 2000") which is
attached as Annex 9.1. The Financial Statement as per December 31, 2000
shows a consolidated Equity Capital for the Schaeff Group of Companies,
calculated pursuant to § 266 (3) German Commercial Code (HGB) (shares,
reserves, profit/loss carried forward and net annual profit/loss)
(hereinafter referred to as the "Equity Capital") of EUR 31,773,162.65 (in
words: Euro thirty one million seven hundred seventy three thousand one
hundred sixty two and sixty five Cent) (hereinafter "Equity Capital as per
December 31, 2000") as well as Sellers' Clearing Account claims of EUR
22,462,618.33 (in words: Euro twenty two million four hundred sixty two
thousand six hundred and eighteen and thirty three Cent) (hereinafter
"Sellers' Clearing Account Claims as per December 31, 2000"). Should the
sum out of (i) the undiminished Equity Capital of Schaeff Holding KG as per
the Closing Date calculated pursuant to § 266 (3) HGB (shares,
reserves, profit/loss carried forward and net annual profit/loss)
(including the aggregated profits and losses of the Schaeff Group of
Companies as of the Effective Date (as defined hereinafter)) (hereinafter
"Closing Equity Capital") and (ii) the Sellers' Clearing Account Claims as
per the Closing Date (hereinafter "Sellers' Clearing Account Claims as per
Closing"), (the sum out of the Closing Equity Capital and the Sellers'
Clearing Account Claims as per Closing is hereinafter referred to as the
"Aggregated Closing Equity Capital"), determined on the basis of a balance
sheet drawn up pursuant to Section 9 of this Agreement not be at least
equivalent to sum out of (i) the Equity Capital as per December 31, 2000
and (ii) Sellers' Clearing Account Claims as per December 31, 2000 (the sum
out of the Equity Capital as per December 31, 2000 and the Sellers'
Clearing Account Claims as per December 31, 2000 is hereinafter referred to
as the "Aggregated Equity Capital as per December 31, 2000"), or should it
exceed this amount, the Base Purchase Price shall be adjusted accordingly:
(a) If the Aggregated Closing Equity Capital is less than the amount of
the Aggregated Equity Capital as per December 31, 2000, the Base
Purchase Price shall be reduced on a Euro for Euro basis by the amount
by which the Aggregated Equity Capital as per the Closing Date is less
than the Aggregated Equity Capital as per December 31, 2000
(hereinafter "Reduction in Base Purchase Price").
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -41-
________________________________________________________________________________
(b) If the Aggregated Closing Equity Capital exceeds the Aggregated Equity
Capital as per December 31, 2000, the Base Purchase Price shall be
increased on a Euro for Euro basis by the amount by which the
Aggregated Closing Equity Capital exceeds the Aggregated Equity
Capital as per December 31, 2000 (hereinafter "Increase In Base
Purchase Price").
The Reduction and Increase in the Base Purchase Price shall be referred to
together hereinafter jointly as the "Base Purchase Price Adjustment". The
final purchase price calculated on the basis of the Base Purchase Price (as
defined above) and the Base Purchase Price Adjustment shall be referred to
hereinafter as the "Final Purchase Price". For clarification purposes it is
hereby set forth that any Base Purchase Price Adjustment shall be solely
added to, respectively set off from (as the case may be) the Cash Amount
and shall neither increase or decrease the Escrow Amount as defined in
Section 5.4 above.
9.2 Calculation of the Base Purchase Price Adjustment. If the Base Purchase
Price has to be adjusted, the Reduction or, respectively, Increase in Base
Purchase Price shall be charged against the Cash Amount as follows:
(a) If the Base Purchase Price is to be reduced, the Reduction in Cash
Amount shall be re-paid by Sellers to Buyer including VAT, if any,
upon first request in immediately available funds, free of any bank
charges to a bank account designated by Buyer vis-a;-vis Sellers in
writing. Deviating from Section 12.8 below, it is hereby expressly set
forth that the Sellers are jointly and severally liable vis-a-vis the
Buyer for any repayment claim of the Buyer against them due to a
Reduction in Base Purchase Price.
(b) If the Base Purchase Price is to be increased, the Increase in the
Cash Amount including VAT, if any, shall be due for payment upon first
request by the Buyer. It shall be paid into a bank account to be named
in writing by the Sellers in immediately available funds, free of any
bank charges.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -42-
________________________________________________________________________________
9.3 Drawing up of balance sheet. The Parties are in agreement that the
Aggregated Closing Equity Capital as per the Closing Date shall, if Closing
occurs on or prior to January 31, 2002, for the purpose of simplification
and irrespective of the exact Closing Date, be determined as per December
31, 2001. In such case, the Closing Date Balance Sheet (as defined below)
shall be determined as per December 31, 2001 and shall, for the purpose of
this Agreement, serve as the Closing Date Balance Sheet. If Closing occurs
later than January 31, 2002, then an interim balance sheet shall be drawn
up as per the exact Closing Date and shall serve as Closing Date Balance
Sheet (as defined below). An accountant or an auditor designated by the
Sellers shall without undue delay after Closing draw up a balance sheet
(balance sheet and profit and loss account) as per December 31, 2001 or the
Closing Date (as the case may be) of the Schaeff Group of Companies in
order to determine the Aggregated Closing Equity Capital and the Base
Purchase Price Adjustment, if any. If the Closing Date Balance is
determined as per December 31, 2001, it shall be prepared at Schaeff
Holding KG's expense. If it is determined as per the exact Closing Date it
shall be prepared at Schaeff Holding KG's and Buyers expense, each of which
shall bear one half of the expenses incurred. In the Closing Date Balance
Sheet (as defined hereinafter) and deviating from accounting treatment
under the German Commercial Code (HGB), all Companies of the Schaeff Group
of Companies will be consolidated and can also be taken from the
preliminary remarks set forth in the Financial Statement as per December
31, 2000 (as defined above). Such balance sheet shall be prepared on a
consolidated basis in accordance with the accounting principles, practices
and methods used in the preparation of the Financial Statement as per
December 31, 2000 and in compliance with generally accepted German
accounting principles applying §§ 242 ff. HGB (Grundsätze
ordnungsgemässer Buchführung) (hereinafter "Closing Date Balance Sheet"),
except as otherwise is expressly stated in Annex 9.3 or set forth in
Section 7.3. Sellers shall have the Closing Date Balance sheet reviewed by
Deloitte & Touche GmbH Wirtschaftsprüfungsgesellschaft (hereinafter
referred to as "DT"). The Parties shall (i) assist and co-operate with each
other and their respective representatives in the preparation of the
Closing Date Balance Sheet and (ii) have an unrestricted right to
information, access to any books, records and reasonable attendance whilst
the Closing Balance Sheet is being drawn up and subsequently reviewed by
DT. The reviewed Closing Date Balance Sheet, the Aggregated Closing Equity
Capital and the Base Purchase Price Adjustment, if
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -43-
________________________________________________________________________________
any, shall be submitted to the Buyer and the Sellers at the latest 150 days
after the Closing.
9.4 Inspection by Parties. The Parties are entitled to inspect the Closing Date
Balance Sheet and to inspect all the relevant documents and books for this
purpose. The Parties shall inform each other in writing whether they agree
with the Closing Date Balance Sheet, the Closing Equity Capital and the
Base Purchase Price Adjustment, if any, or whether they have any objections
to the accuracy thereof at the latest 75 days after the Closing Date
Balance Sheet, the Aggregated Closing Equity Capital and the Base Purchase
Price Adjustment, if any, is submitted. If the Parties agree with the
Closing Date Balance Sheet, the Aggregated Closing Equity Capital and the
Base Purchase Price Adjustment, if any, or if the Parties fail to raise any
objections with the other Parties within 75 days, the Closing Date Balance
Sheet, the Aggregated Closing Equity Capital and the Base Purchase Price
Adjustment, if any, shall be deemed binding for the purposes of this
Agreement. If one Party informs the other Party of objections concerning
the accuracy of the Closing Date Balance Sheet, the Aggregated Closing
Equity Capital and the Base Purchase Price Adjustment, if any, within the
correct period, the Parties shall attempt to resolve the differences in
opinion. Those parts of the Closing Balance Sheet to which no objections
have been raised shall be deemed binding for the purpose of this Agreement.
9.5 Decision by Arbitrator. If the Sellers and the Buyer fail to come to an
agreement within a period of 30 days after one Party informs the other
Party of any objections within the correct period, a decision shall be made
with binding effect for the Parties by an auditor acting as arbitrator, who
shall be appointed jointly by the Sellers and the Buyer within a period of
a further 15 days. If the Sellers and the Buyer also fail to agree on an
arbitrator, at the request of either the Sellers or the Buyer, the Institut
der Wirtschaftsprüfer e.V., Düsseldorf (Institute of Auditors) shall
appoint an auditing company as arbitrator. Said auditing company may not
act as auditor for one of the Parties. Before reaching his decision, the
arbitrator shall give the Sellers and the Buyer an opportunity to state
their position. The arbitrator shall inform the Sellers and the Buyer of
his decision, stating the reasons for it in writing, within a period of 30
days after being appointed. The arbitrator shall decide also on whether
objections have been raised within in the time period set forth in Section
9.4 above. The
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -44-
________________________________________________________________________________
arbitrator shall furthermore decide on how the costs for the arbitration
procedure are to be borne pursuant to §§ 91 ff. Code of Civil
Procedure (ZPO).
9.6 Auditors of the Parties. The Parties are entitled to arrange for a member
of the legal or accounting professions to conduct and exercise their tasks
and rights stipulated in Section 9.3, Section 9.4 and Section 9.5.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -45-
________________________________________________________________________________
§ 10
Real Estate, Charges of Real Property
10.1 Transfer of Real Estate. The Real Estate belongs to the jointly owned
assets of Schaeff Grundbesitz GbR. The Parties hereby clarify that with the
transfer of the Schaeff Grundbesitz GbR Shares after or on the basis of
this Agreement, the Real Estate shall also be transferred to the Buyer.
10.2 Correction of Land Register. The Parties hereby apply for the Land Register
to be corrected in view of the Assignment in the event that the conditions
precedent pursuant to the Closing Agreement as set out in this Agreement
are met. The Parties know that the Land Register can only be corrected once
the clearance certificate has been issued by the pertinent tax office.
§ 11
Warranties given by Sellers
Warranties. As of Signing and as of Closing the Sellers represent and warrant to
the Buyer that the following is correct and complete, with no further warranties
being given unless agreed otherwise elsewhere in this Agreement and except as
disclosed in the Annexes, including the Update Disclosure Schedule, subject,
however, to the qualifications set forth in Section 11.22 below, as of Closing:
11.1 Legal situation of the Schaeff Group of Companies. The information given in
nos. 1 to 9 in the Preamble is correct and complete. The extracts from the
commercial register for the Parent Companies attached as Annex 11.1-A are
complete and correct. There are no facts for which an application for entry
in the Commercial Register of the Parent Companies ought to be or has been
filed, but which have not yet been entered in the extract from the
commercial register attached as Annex 11.1-A, unless indicated otherwise by
Annex 11.1-B. The Sale Shares are free from rights of third parties. In
particular, they have not been assigned, attached, pledged or encumbered
with third party rights in any other way.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -46-
________________________________________________________________________________
11.2 Economic situation of the Schaeff Group of Companies. The Companies of the
Schaeff Group of Companies are, unless indicated otherwise in Annex 11.2,
not over-indebted or insolvent according to commercial law or insolvency
law, no application has been filed for insolvency proceedings to be
initiated against the assets of any of the Companies of the Schaeff Group
of Companies and to the best of the Sellers' knowledge, there is, unless
indicated otherwise in Annex 11.2, no threat of indebtedness or insolvency
(under commercial or insolvency law) or an application for insolvency
proceedings against the assets of any of the Companies of the Schaeff Group
of Companies. However, and notwithstanding the foregoing, there is, in
particular with respect to the Companies of the Schaeff Group of Companies
listed in Annex 11.2, no obligation under applicable law, for any of the
Companies of the Schaeff Group of Companies to initiate insolvency
proceedings. The Sellers have not resolved the liquidation of any of the
Companies of the Schaeff Group of Companies, nor do they intend to do so.
11.3 Sellers' power of disposal. The Sellers have the necessary legal power to
enter into this Agreement and to meet all obligations arising from this
Agreement. Neither the conclusion, the execution nor the implementation of
this Agreement:
(a) constitute a breach of any provision in the Articles of Association or
other company provisions of any of the Parent Companies, or
(b) constitute a breach of any contract or other agreement to which the
Sellers are a party.
11.4 Sale Shares. The Sellers are the legal and economic owners of the Sale
Shares, which are at their free disposal. The Sale Shares are free from all
rights of third parties. Neither the sale nor the transfer of the Sale
Shares requires the consent of persons who are not parties to this
Agreement.
11.5 Shareholdings. Annex 11.5 contains a complete list of all interests the
Parent Companies have in other companies. These shareholdings continue to
exist and the relevant companies have been duly established.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -47-
________________________________________________________________________________
11.6 Annual Financial Statements. The Sellers have submitted complete copies of
the annual financial statements of the Parent Companies as per December 31,
2000, which are attached as Annex 11.6-A, as well as an aggregated balance
sheet for the Schaeff Group of Companies as per December 31, 1999 and a
consolidated balance sheet for the Schaeff Group of Companies as per
December 31, 2000, which are attached as Annex 11.6-B, (hereinafter the
"Annual Financial Statements"). The Annual Financial Statements, except the
aggregated balance sheet for the Schaeff Group of Companies as per December
31, 1999, have been drawn up pursuant to statutory provisions and in
accordance with the local generally accepted accounting principles
(Grundsätze ordnungsgemässer Buchführung und Bilanzierung). The annual
financial statements of Schaeff Holding KG and the aggregated balance sheet
for the Schaeff Group of Companies as per December 31, 1999 as well as the
consolidated balance sheet for Schaeff Group of Companies have, however,
not been prepared in accordance with the provisions set out in the
KapCoRiLiG but in the form as described in the preliminary remarks of the
annual financial statement of Schaeff Holding KG, the aggregated balance
sheet for the Schaeff Group of Companies as per December 31, 1999 and the
consolidated balance sheet for Schaeff Group of Companies. Besides this,
the Annual Financial Statements of Schaeff Holding KG have been drawn up
pursuant to the statutory provisions and in accordance with the German
generally accepted accounting principles as well. The Annual Financial
Statements, to the best of the Sellers' knowledge, present a true and fair
view of the situation of the Parent Companies relating to their asset,
finance and earnings position. The balance sheet items have been carried
forward from the last date of the balance sheet in accordance with
consistent, legally permissible principles of valuation, and the rights to
discretionary accounting and valuation have always been exercised
consistently subject to amendments in the valuation caused by inspections
of the business carried out by the tax authorities, unless indicated
otherwise in the Annual Financial Statements.
11.7 No Material Adverse Effect. The business of the Parent Companies as well as
of the Subsidiaries has been conducted with the due care of a business man
(Sorgfalt eines ordentlichen Kaufmanns) between January 01, 2001 and the
Signing of this Agreement. Nothing has arisen which could reasonably be
expected to materially adversely affect the situation of the Schaeff Group
of
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -48-
________________________________________________________________________________
Companies, taken as a whole, relating to its assets, finance and earnings
position, which the Buyer has not been informed of prior to signing.
11.8 Real Estate. Annex P 11 contains excerpts of the Land Register - if
applicable - of the Real Estate. With the exception of the Real Estate, the
Schaeff Group of Companies does not own any real property or rights
equivalent to real property, unless indicated otherwise in Annex 11.8-A.
The Buyer knows of the encumbrances on the Real Estate, that are registered
in the land register. The real property listed in Annex 11.8-A is free from
the rights of third parties and property liens, unless indicated otherwise
in Annex 11.8-A and in Annex 11.8-B.
11.9 Intellectual Property Rights. The Companies of the Schaeff Group of
Companies own all intellectual property rights listed in Annex 11.9
(trademarks, patents, utility models and any other domestic or foreign
industrial property rights) (hereinafter "Intellectual Property Rights").
The Companies of the Schaeff Group of Companies hold all the intellectual
property rights used at present within the framework of the business
operations of the Companies of the Schaeff Group of Companies and those
which are essential for business operations. All of these Intellectual
Property Rights have been duly registered with, filed in or issued by, as
the case may be, responsible authorities under the relevant jurisdiction.
To the best knowledge of the Sellers, none of the Companies of the Schaeff
Group of Companies is infringing the intellectual property rights of third
parties.
11.10 Assets of the Companies. The Parent Companies own the fixed assets
(Gegenstände des Anlagevermögens) shown in the respective Annual
Financial Statements and the fixed assets movement schedule
(Anlagenspiegel) of the consolidated annual financial statement of the
Schaeff Group of Companies as of December 31, 2000, which is attached to
this Agreement as Annex 9.1, unless individual objects belonging to the
collection of assets have been sold or replaced in the ordinary course of
business or are listed in Annex 11.10-A. The assets are free from the
rights of third parties, unless indicated otherwise by Annex 11.10-B, other
Annexes to this Agreement or common reservations of title
(Eigentumsvorbehalte). The objects belonging to the assets of the Parent
Companies and all other assets used by the Company are in a good condition
taking the age and extent of use thereof into account.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -49-
________________________________________________________________________________
11.11 Environment. With the exception of the facts referenced by the documents
listed in Annex 11.11, there is no material environmental contamination or
environmental clean up nor environmental proceedings or material
environmental notices concerning the buildings, property or the ground
water thereunder of the Parent Companies and the Schaeff Holding KG
Subsidiaries.
11.12 Employees. Annex 11.12-A contains a complete and accurate list of all
employees of the Companies of the Schaeff Group of Companies as of October
31, 2001 (stating to which Company of the Schaeff Group or Companies the
employee in question belongs) except for Exlo Limited, Inter-Techno
Commerce and Nippon Schaeff. The Companies of the Schaeff Group of
Companies do not have any pension obligations other than those listed in
Annex 11.12-B. Annex 11.12-B indicates to which Company the pension
obligation in question relates. The Buyer has been informed of the pension
agreements between the Companies of the Schaeff Group of Companies and the
Sellers. There are no labor law disputes other than those mentioned in
Annex 11.12-C.
11.13 Shop Agreements. A list of all material written shop agreements
(Betriebsvereinbarungen) of the Companies of the Schaeff Group of Companies
is contained in Annex 11.13.
11.14 Governmental Authorizations. To the best knowledge of the Sellers, the
Parent Companies and the Subsidiaries hold all the material governmental
authorizations required for its current business operations all of which
are still valid and subsisting. The Companies of the Schaeff Group of
Companies are in compliance in all material respects with all material
applicable German laws, rules and regulations currently in effect.
11.15 Litigation, product liability. With the exception of the ordinary
collection of debts and the litigation, official proceedings and
contentious matters listed in Annex 11.15-A as of seven days before
Signing, no litigation is pending, and no legal claims have been seriously
and expressly asserted against the Companies of the Schaeff Group of
Companies in writing. There are no product liability cases in view of the
products supplied by the Companies of the Schaeff Group of Companies
pending (rechtshängig), nor have any product
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -50-
________________________________________________________________________________
liability claims been seriously and expressly asserted against the
Companies of the Schaeff Group of Companies in writing since December 31,
1999 which have not yet been settled, except as disclosed in Annex 11.15-B.
11.16 Lease Agreements. Annex 11.16-A and Annex 2.2 together contain a complete
listing and brief description of all real estate lease and tenancy
agreements held by the Companies of the Schaeff Group of Companies
(hereinafter together "Real Estate Lease Agreements"), stating the annual
rent and the notice periods for both Parties. None of the Companies of the
Schaeff Group of Companies is a party as a lessee to any leasing agreement
with binding commitments with an annual rental payment of more than Euro
3,000, except those listed in Annex 11.16-B.
11.17 Insurance policies. Annex 11.17 gives a full and accurate listing of all
existing insurance policies held by the Companies of the Schaeff Group of
Companies. The insurance policies have been taken out with well-known
insurance companies. The Companies of the Schaeff Group of Companies have
met their obligations arising from the existing and former insurance
policies. They are not in default with their obligations from the existing
and former insurance policies. Insurance cover similar to the insurance
cover existing under the existing insurance policies has been obtained by
the Schaeff Group of Companies since 1995 under insurance policies similar
to the existing insurance policies, which the Schaeff Group of Companies
has taken out with HDI, except D & O insurance cover, which has been taken
out no longer than since January 1, 2001,
11.18 Taxes and Tax Declarations. The following is correct in view of taxes and
tax declarations:
a) All necessary tax declarations and tax returns, including those for
social insurance contributions and other declarations and statements
regarding taxes, charges and rates including income or corporate tax,
trade tax, turnover tax, wage tax, "solidarity supplement" (additional
taxes aimed at encouraging economic growth in the former East Germany)
(Solidaritätszuschlag) and other taxes, social insurance contributions
and other public law charges as well as fines, penalties and interest
incurred on the same (hereinafter referred to together as "Taxes")
which the
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -51-
________________________________________________________________________________
Companies of the Schaeff Group of Companies are obliged to submit
before the date hereof in connection with the business operations of
the Companies of the Schaeff Group of Companies have been duly
submitted to the pertinent authorities in good time.
b) Taxes relating to the period up until the date hereof or any business
transactions completed in the same period have either been paid by the
Companies at the time they became due or are covered by reserves in
the respective annual financial statements, provided such reserves are
to be created in accordance with the generally accepted book keeping
and accounting principles. None of the Companies of the Schaeff Group
of Companies are in default with the payment of taxes.
11.19 Affiliates' Relationship to the Company. The Companies of the Schaeff
Group of Companies do not have any outstanding contract, agreement or other
arrangement with Sellers or any of his affiliates, i. e. direct family
members or companies wholly owned or controlled by any of Sellers or direct
family members, which will continue after the Closing except as provided
for in this Agreement or any of its Annexes.
11.20 Accounts Receivable. Except as reserved against, all accounts receivable
of the Company are bona fide accounts receivable and represent sales
actually made in the ordinary course of business and, to the best of
Sellers' knowledge, shall be (or have been) materially collected when due,
except to the extent of the normal allowance for doubtful accounts with
respect to accounts receivable computed in a manner consistent with prior
practice as reflected on the 2000 Financial Statements.
11.21 Disclosure. No representation or warranty by Sellers contained in this
Agreement and no information contained in any Annex thereto pursuant hereto
or in connection with the transaction contemplated contains or will contain
any materially untrue statement of a material fact or omits or will omit to
state a material fact necessary in order to make the statements contained
herein or therein not materially misleading. In addition the Buyer and/or
TEREX have been informed by the Sellers and/or their advisers about all
information and facts, including documents and agreements, which, with
respect to the Schaeff
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -52-
________________________________________________________________________________
Group of Companies as a whole, are of material importance for a prospective
Buyer in order to make a proper investment decision.
11.22 Restriction. Any liability on the part of the Sellers in view of facts and
information given to the Buyer in this Agreement and its Annexes thereto
including the disclosure letter in Annex 11.22 is excluded. With respect to
matters that have occurred between the date hereof and January 31, 2002,
any liability on the part of the Sellers in view of facts and information
given to the Buyer in the Update Disclosure Schedule is excluded only
insofar and to the extent that it is already reflected as a liability or
covered by accruals in the Closing Date Balance Sheet or compensated by
payments of any insurance. If this is not the case, the disclosure made in
the Update Disclosure Schedule shall not lead to a exclusion on the
Sellers' liability as set forth in Section 11 and Section 12 of this
Agreement. With respect to matters disclosed in the Update Closing Schedule
that have occurred after January 31, 2002, any liability shall be reflected
as a liability or covered by accruals in the Closing Date Balance Sheet, if
so required and appropriate under the accounting principles and treatment
set forth in Section 9.3 of this Agreement, and liability on the part of
the Sellers is limited by the amount reflected or accrued for in the
Closing Date Balance Sheet, unless otherwise provided for in this
provision. Notwithstanding the foregoing the Parties are in agreement that
any disclosure made in the Update Disclosure Letter shall, no matter
whether it relates to the time period between the date hereof and January
31, 2002 or the time period between January 31, 2002 and the Closing Date,
however, have no impact (i) on the condition to Buyer's obligations under
this Agreement set forth in Section 6.2 (d) and the Buyer's right arising
thereof not to accept the Assignment of the Sale Shares, but - if the
further requirements set forth in this provision are met - to terminate the
Agreement in accordance with Section 6.5, (ii) the Seller's obligations set
forth in Section 7 and any liability of the Sellers arising vis-à-vis the
Buyer in case of a non compliance with these obligations and (iii) the Base
Purchase Price Adjustment mechanism set forth in Section 9 of this
Agreement. For purposes of this Agreement, with respect to any matter that
is disclosed in any Annex or the Updated Disclosure Schedule in such a way
as to disclose information called for by another Section or Annex of this
Agreement, such matter shall be deemed to have been disclosed in
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -53-
________________________________________________________________________________
response to such other Section or Annex, notwithstanding the omission of
any appropriate cross reference thereto.
§ 12
Warranty Claims
12.1 Claims of the Buyer. If it becomes apparent that the warranties given by
the Sellers in this Agreement are not accurate, the Sellers shall place the
respective Company in the position that it would be in if the warranties
were correct. The Buyer shall only be entitled to payment after (i) the
Buyer has granted the Sellers an appropriate period of at least 30 days
(hereinafter "Rectification Period") in which to bring about the warranted
situation (hereinafter "Rectification") and the Sellers fail to remedy the
defects within the said rectification period or (ii) if it can be proven
that rectification is not possible.
12.2 Warranty Concerning Tax. If the warranties pursuant to Section 11.18 (Taxes
and Tax Declarations) of this Agreement are violated, the Sellers shall be
obliged to reimburse the respective Company the due taxes and/or interest
payments (minus reimbursement of interest) (hereinafter referred to as
"Additional Taxes") provided and to the extent that these Additional Taxes
(i) relate to the business operations of the Companies of the Schaeff Group
of Companies until December 31, 2000 and (ii) no reserves have been created
in the annual financial statements for these tax and interest payments and
(iii) that such tax payments do not lead to a Tax Shortfall (Mindersteuer)
(as defined hereinafter) in the future. When calculating any claims the
Buyer may have to reimburse pursuant to sentence 1, any tax refunds granted
to the respective Company in connection with their business operations
until December 31, 2000 shall be offset against the additional taxes. This
shall apply irrespective of whether a tax payment within the meaning of
sentence 1 and the tax refund to be offset against it refer to the same or
different Companies of the Schaeff Group of Companies and irrespective of
to which of the business years prior to December 31, 2000 the relevant tax
refund/subsequent tax payment refers. A "Tax Shortfall" in terms of this
Agreement shall exist, if the facts, upon which the Additional Taxes which
Buyer is to be indemnified against are based, lead (i) on the basis of the
existing structure and (ii) on the basis of assumed profits for the
relevant years to a tax shortfall (Mindersteuer) in the subsequent years.
In order to determine the exact amount of the Tax
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -54-
________________________________________________________________________________
Shortfall in the future, the Tax Shortfall shall be discounted on the basis
of an interest rate of five percent (5%) per year.
12.3 Exclusion. Any liability of the Sellers shall be excluded to the extent
that the claims of the Buyer (i) are compensated by payments of any
insurance, or (ii) are reflected as a liability or covered by accruals in
the Closing Date Balance Sheet or (iii) if Buyer or TEREX knew (positive
Kenntnis) as of the date hereof of the incorrectness of such representation
and warranty.
12.4 Basket. The Buyer shall only be entitled to claim compensation if the
claims exceed the threshold of EUR 250,000.00 (in words: Euro two hundred
fifty thousand) individually or jointly, and then shall be recoverable
completely.
12.5 Cap on Claims. The Sellers shall not be liable for any claims on the part
of the Buyer based on this Agreement exceeding the Escrow Amount of EUR
13,000,000.00 (in words: Euro thirteen million), except for claims based
upon Sections 11.3 and 11.4.
12.6 Third Party Claims. In the event that claims are asserted against the
Companies of the Schaeff Group of Companies for which Buyer demands
indemnification from the Sellers, the Buyer shall promptly notify the
Sellers about such claim and provide them with all reasonable information
on such claim. The Parties shall then evaluate jointly the merits of such
claim, seek to reach agreement as to and mutually assist each other in
defending such claims. Within a time period of thirty (30) days after
notification of the Sellers by Buyer about a claim being asserted against
the Companies of the Schaeff Group of Companies for which Buyer demands
indemnification from the Sellers, the Parties shall use their reasonable
best efforts to come to a mutual agreement about who of them will defend
the Companies of the Schaeff Group of Companies against such claim. If the
Parties fail to come to an agreement in such time period, then the Buyer
shall be entitled to defend the Companies of the Schaeff Group of Companies
against such claim with counsel selected by him (subject to the consent of
the Sellers, which consent shall not be unreasonably withheld) as long as
the Buyer is conducting a good faith and diligent defense. The Sellers
shall at all times have the right to fully participate in the defense of a
third party claim at their own expense directly or through counsel and the
Buyer shall provide them with any and all reasonable
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -55-
________________________________________________________________________________
information on the claim and the defense. If such good faith and diligent
defense is not being or ceases to be conducted by the Buyer, the Sellers
shall have the right to undertake the defense of such claim (with counsel
selected by them, subject to the consent of the Buyer, which consent shall
not be unreasonably withheld). In such case, the Buyer shall at all times
have the right to fully participate in the defense of a third party claim
at his own expense directly or through counsel. Notwithstanding the
foregoing and as a matter of principle, with respect to third party claims,
the Parties agree to co-operate in good faith and will make available such
information and assistance that is reasonable to defend such third party
claims, no matter whether the Buyer or the Sellers direct the defend
against such third party claim. If the defense is being directed by Buyer,
the Buyer is only then entitled to accept such claim, enter into
negotiations and enter into any kinds of settlement agreements for and on
behalf of the Companies of the Schaeff Group of Companies with the prior
written consent of the Sellers, which consent will not be unreasonably
withheld. Buyer and the respective Company of the Schaeff Group of
Companies shall also under no circumstances be entitled to make any
payments without the prior written consent of the Sellers, unless it is
done in accordance with a provisionally or finally enforceable court
decision or a provisionally or finally enforceable administrative order
(including tax orders). The reasonable legal fees and other costs incurred
with the defense against a third party claim shall be borne by the Sellers,
even if the Buyer is directing the defense against such third party claim.
12.7 Exclusion of More Extensive Claims and Liability. All warranty claims and
claims to damages created for the Buyer on the basis of this Agreement are
exclusively stipulated in this Section 12. All further warranty claims or
claims to damages, in particular, but not limited to, the rescission
(Wandlung), reduction of the purchase price (Minderung), as well as claims
based on a breach of a pre-contractual duty (culpa in contrahendo) and
claims to avoid this Agreement for an error (Irrtumsanfechtung) or
withdrawal from or subsequent cancellation of this Agreement due to a claim
to damages and all other claims of the Buyer, no matter on what legal
grounds, are hereby excluded as far as legally possible. For clarification
purposes it is hereby set forth that Sellers' liability for any damage
caused intentionally (vorsätzlich) shall not be excluded by this Section
12.7.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -56-
________________________________________________________________________________
12.8 Several Liability of the Sellers. The Sellers are, except as otherwise is
set forth expressly in this Agreement, jointly and severally only liable up
to the Escrow Amount of EUR 13,000,000.00 (in words: Euro thirteen
million), above which amount any liability of Sellers is excluded except
with regard to Section 11.3 and 11.4, for which Sellers are severally
liable only.
§ 13
Statute of Limitations
13.1 Principle. Any claims on the part of the Buyer arising from this Agreement
or in relation to this agreement shall become statute barred on June 30,
2003, unless agreed otherwise in Sections 13.2 and 13.3 and except claims
based upon Sections 11.3 and 11.4 to which the statutory regime applies.
13.2 Claims relating to Taxes. Warranty claims based on Section 11.18 (Taxes and
Tax Declarations) shall become statute-barred 6 (six) months after the
relevant final and binding notice of assessment is issued, based on a tax
audit covering the period through Closing.
13.3 Environmental Claims. Environmental Claims pursuant to Section 11.11 become
statute-barred on June 30, 2004.
§ 14
Effective Date
The Effective Date is the Closing Date (0:00 hours) (or any other Date to which
the Closing Date is postponed in accordance with this Agreement).
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -57-
________________________________________________________________________________
§ 15
Confidentiality, Announcements, Non-Compete Covenant
15.1 Secrecy, Confidentiality. The Sellers shall after Closing treat all
business information, business secrets and technical know-how of the
Schaeff Group of Companies (hereinafter "Confidential Information")
confidentially, provided the said Confidential Information is not common
knowledge, and shall not use the Confidential Information for themselves or
for third parties. The Sellers are entitled to inform third parties of the
Confidential Information if obliged to do so by law or on the basis of a
court or official order.
15.2 Announcements, Press releases. The Parties shall not make any announcements
or notifications to third parties, in particular press releases, concerning
the circumstances of the conclusion of this Agreement, the contents of the
Agreement and the actions planned on the basis of this Agreement, before
checking the contents thereof with and receiving the written approval of
the other Parties, which consent will not be unreasonably withheld or
delayed. This obligation to confer and obtain approval shall not exist if
one of the Parties is obliged to issue a notification by law or on the
basis of a court or official order.
15.3 Non-Compete Covenant. The Sellers will not, for the duration as set forth
in Annex 15.3-A and as of the Effective Date:
(a) directly or indirectly, engage in any business, activity or operation
competitive with the current Business of the Schaeff Group of
Companies;
(b) manufacture, market or sell anywhere in the territories set forth in
Annex 15.3-B (hereinafter the "Territory") any products presently
under development by the Schaeff Group of Companies;
(c) directly or indirectly, induce, solicit, aid or assist any other
person to induce or solicit, employees, salespersons, agents,
consultants, distributors, representatives, advisors, customers or
suppliers of the Schaeff Group of Companies in its Business to
terminate, curtail or otherwise limit their employment or business
relationships with the Business of the Schaeff Group of Companies;
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -58-
________________________________________________________________________________
(d) use the name "Schaeff", or the name "Xxxxx" (hereinafter the
"Protected Names") or any other name similar to the Protected Names
for business purposes in the Business of the Schaeff Group of
Companies.
The restrictions in this Section 15.3 shall not apply with respect to any
acquisition or ownership of the one or several of the Sellers of up to 5%
of the outstanding equity interests in any publicly traded company engaged
in the Business, provided, however, that the Sellers (i) do not participate
in the operation or management of such publicly traded company and (ii)
shall not transfer to such company any proprietary information exclusive to
the Business of the Schaeff Group of Companies. The restrictions in this
Section 15.3 shall also not apply with respect to any shareholding of Xxxx
Xxxxxxx in Exlo Limited until the Call Option has been exercised and the
Exlo Limited Shares as well as Xxxx Xxxxxxx'x rights and obligations under
the fiduciary agreements with the Trustees holding the preferred stock in
Exlo Limited have been transferred to Buyer.
§ 16
Miscellaneous
16.1 Continued Co-Operation. The Parties shall co-operate after the Signing of
this Agreement in order to execute this Agreement. Each party to the
contract shall take all further action, submit all declarations and sign
all deeds which are sensibly necessary to implement and complete this
Agreement and the transactions intended on the basis of this Agreement.
16.2 Joint and several liability of TEREX, Assignment. TEREX shall (i) be bound
by the terms and conditions of this Agreement in the same way as the Buyer
and shall (ii) be joint and several liable for any and all obligations of
Buyer under this agreement (Gesamtschuldnerische Haftung) and shall only be
released from any such obligations to the extent that these are fully
performed by the Buyer. TEREX shall use its best efforts as direct or
indirect shareholder of Buyer in order to ensure that Buyer shall perform
its obligations under this Agreement entirely. This Agreement and/or parts
of this Agreement shall not
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -59-
________________________________________________________________________________
be assigned by any Party to another Party or a third party without
obtaining the prior written consent of all other Parties, except as
otherwise is expressly set forth in this Agreement. The Buyer shall,
however and notwithstanding the foregoing, be entitled to assign (abtreten)
this Agreement and/or parts of this Agreement to an affiliated enterprise.
The question whether an assignee shall be deemed as affiliated enterprise
shall be determined in accordance with §§ 15 - 19 German Stock
Corporation Act (AktG). For the avoidance of doubt, it is hereby set forth
that such assignment has no impact on the obligations and restrictions
imposed on the Buyer and TEREX hereunder.
16.3 Asset Management Companies. The Parties are in agreement that each of the
Seller shall be entitled to incorporate between the date hereof and the
closing Date a asset management limited liability company (Gesellschaft mit
beschränkter Haftung) which, as designated by each of the Sellers
individually vis-à-vis Buyer in writing before the closing Date, may hold
as of Closing all or part of the Sale Shares and/or Assumed Liabilities
(hereinafter "the Asset Management Companies"). In such case, the Sellers
shall ensure that that obligations set forth under this Agreement to sell
the Sale Shares and to perform the Assignment shall be performed by the
respective Asset Management Company and the Buyer shall accept such Sale
and Assignment. In such case the provisions set forth under this Agreement
shall apply analogously with respect to each Asset Management Company and
the Asset Management Companies shall enter into this Agreement by means of
notarial declaration of accession (Beitrittserklärung). The Parties hereby
agree to such declaration of accession and the Asset Management Companies
entering this Agreement. For the avoidance of doubt, it is hereby set forth
that each of the Buyers shall (i) be bound by the terms and conditions of
this Agreement in the same way as him/her respective Asset Management
Companies and the respective Buyer shall (ii) be jointly and severally
liable for any and all obligations of his/her Asset Management Companies
under this agreement (Gesamtschuldnerische Haftung) and shall only be
released from any such obligations to the extent that these are fully
performed by his/her respective Asset Management Company.
16.4 Applicable law. This Agreement and the interpretation thereof is
exclusively governed by the law of the Federal Republic of Germany,
excluding any conflict of laws provisions.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -60-
________________________________________________________________________________
16.5 Language. This Agreement is executed in the English language. The English
version is binding. Annexes to this Agreement may be executed in the German
language without English translation.
16.6 Tax consequences of this Agreement. Each Party to this Agreement shall be
solely responsible for the tax consequences arising from this Agreement for
the said party. Should intended or hoped for tax results or consequences
not come about (inter alia due to the corporate tax reform currently
planned by the Federal government, an amendment to the currently planned
corporate tax reform or other amendments to the tax laws), this shall not
create any rights against the other Parties to this Agreement, in
particular no right to the rescission of the Agreement, to damages or to
the adjustment of the Agreement due to frustration of contract.
16.7 Participation in tax inspections. The Sellers are entitled to take part in
external tax inspections and other tax inspections or proceedings pursuant
to the Tax Code, the Tax Court Code or foreign laws which are introduced or
continued after the Closing Date and refer to the taxation periods up until
the date of completion. To the extent that the Sellers have a right of
participation pursuant to Section 16.7, the Buyer shall inform the Sellers
without delay of the relevant inspections and proceedings, in particular in
order to allow the Sellers to commission persons under an obligation to
maintain confidentiality due to their profession to participate in the
relevant inspections and proceedings on their behalf. The Sellers'
representatives are in particular entitled to take part in initial and
final meetings. At the Sellers' request, the Buyer shall ensure that all
information necessary for the protection of the Sellers' interests is made
available to the Sellers. At the Sellers' request, the Buyer or,
respectively, the relevant Company, shall be obliged to file an appeal
against tax assessments, other decisions reached by the tax authorities
and/or decisions of the tax courts. The costs for such appeals including
advance payments for costs and the costs for any litigation conducted by
the Buyer or the companies at the request and in accordance with the
instructions of the Sellers shall be borne by the Sellers.
16.8 Settlement of disputes. All disputes between the Parties arising from or in
connection with this Agreement shall be decided exclusively by an
arbitration tribunal in accordance with the rules of arbitration of the
Deutsche Institution
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -61-
________________________________________________________________________________
für Schiedsgerichtsbarkeit e.V. (DIS). The arbitration tribunal shall
consist of three arbitrators and shall have its seat in Frankfurt am Main,
Germany. In accordance with the valid rules of arbitration of the DIS, the
Sellers on the one hand and TEREX and the Buyer on the other hand shall
each jointly appoint one arbitrator. The third arbitrator shall then be
appointed in accordance with the rules of arbitration of the DIS. An award
made on the basis of these proceedings is final and binding for the Parties
and may, upon application, be declared enforceable by the pertinent state
court. An appeal may not be made against the decision of the arbitration
tribunal. The award shall also contain a decision concerning the costs of
the arbitration proceedings (including remuneration for the arbitrators).
The language of the proceedings shall be English. Documents originating in
German can be submitted in German. The provisions in this Section 16.8
shall not prevent or hinder the Parties from asserting their claims
vis-à-vis the other Parties arising from this Agreement by seeking a
temporary injunction from the pertinent state courts. Section 9.5 shall
remain unaffected by the provisions of this Section 16.8.
16.9 Costs. Unless explicitly agreed otherwise in this Agreement, each Party to
this Agreement shall bear the costs he himself incurs in connection with
the preparation, Signing and performance of this Agreement, including the
costs for his advisors. The Buyer shall bear the costs for the recording of
this Agreement by a notary and the costs for any further necessary notarial
deeds, commercial register applications and any turnover, transfer or
acquisition tax (e.g. Real Estate Transfer Tax - Grunderwerbssteuer)
incurred by this Agreement and its completion, which is to be paid in
addition to the Final Purchase Price.
16.10 Severability. Should a provision of this Agreement be or become invalid or
unenforceable, or should there prove to be an omission herein, this shall
not affect the validity of the remaining provisions. In place of the
invalid provision, a valid provision shall be deemed agreed which
corresponds to the meaning and purpose of the invalid provision. In the
event of an omission, a provision shall be deemed agreed, which
corresponds, on the basis of the purpose and meaning of this Agreement, to
which the Parties would have agreed had the Parties considered the matter
at the outset.
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -62-
________________________________________________________________________________
16.11 Amendments to the Agreement. Amendments and supplements to this Agreement
shall be made in writing in order to be legally effective, unless recording
by a notary is prescribed by law. This shall also apply for the removal of
this clause.
16.12 Annexes. Annex 16.12 contains a list of Annexes to this Agreement which
are a component of this Agreement.
16.13 Notices and communications. Notices or other communications relating to
this Agreement shall be made in writing and shall either be submitted to
the recipient personally in return for confirmation of receipt, sent by
registered mail with receipt of delivery or by a recognized courier
service, or sent by fax (followed by confirmation of receipt sent by
registered mail with receipt of delivery or recognized courier service).
All notices or other communications shall be addressed to the Parties at
the following addresses (or to other Parties or persons and/or other
addresses the other parties are informed of by the party for whom the
notice was originally intended, with each change only becoming effective
upon receipt of the notification of the change):
(a) to the Sellers:
(1) Xxxx Xxxxxxx
Xxxxxxxxxxxx 00
00000 Xxxxxxxxxx
Xxxxxxx
Fax: 0049 (0)7905 - 55 66
(2) Xxxxxxxxx Xxxxxxx
Ödenbühlsteige 12
74523 Schwäbisch Hall
Germany
Tel. 0000 (0) 000 000000
Fax. 0000 (0) 000 0000000
with a copy to:
Rechtsanwälte Gleiss Xxxx Hootz Xxxxxx
Prof. Xx. Xxxxxxx Xxxxx
Xxxxxxxxxx. 0
00000 Xxxxxxxxx
Xxxxxxx
Fax: 0049 (0)711 - 855 096
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -63-
________________________________________________________________________________
(b) to the Buyer and TEREX:
Terex Corporation
Attn: General Counsel
000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
XXX
Fax: 000 000 000-0000
with a copy to:
Coudert Schürmann
Herrn Rechtsanwalt Xxxx-Xxxxx Xxxxxx
Xxxxxxxxx-Xxxxx-Xxxxxx 0-00 Xxxx-Xxxx
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Fax: 0000 (0) 00 0000-000
Agreement on the Sale and Purchase of Shares as of November 26, 2001 Page -64-
________________________________________________________________________________
Signatures
1. Xxxx Xxxxxxx 2. Xxxx Xxxxxxx
--------------------- -------------------------
3. Xxxxxxxxx Xxxxxxx 4. Xxxxxx Xxxxxxx
---------------------- ------------------------
5. Xxxxxxx Xxxxxx-Xxxxxxx 6. Xxxxx Xxxxxxx
--------------------------- ------------------------
7. TEREX Corporation 8. PPM GmbH
--------------------------- -------------------------
