Acquisition Agreement
by and between
Mannesmann Demag Xxxxxx-Xxxxxx AG
and
ROFIN-SINAR Laser GmbH
Regarding the Sale of Baasel Lasertech
[initials]
Notarization
Register of Authors No. [no entry] /2000
Negotiated in [no entry] on April [no entry], 2000.
The following persons appeared before me, the Notary Public, of [no entry]:
1. Mr./Ms. [no entry],
acting not on his/her own behalf, but rather in the name and on the
account of the following, in accordance with the power of attorney
attached hereto:
Mannesmann Demag Xxxxxx-Xxxxxx AG, Xxxxxx-Xxxxxx-Xxxxxxx 0,
00000 Xxxxxx, Xxxxxxx;
2. Mr./Ms. [no entry],
acting not on his/her own behalf, but rather in the name and on the
account of the following, in accordance with the power of attorney
attached hereto:
ROFIN-SINAR Laser GmbH.
The aforementioned persons identified themselves to the Notary Public by their
identification cards.
The aforementioned persons, acting as stated above, declared as follows:
[initials]
Minutes 2000/60
dated April 29, 2000,
of Xx. Xxxxxx Xxxxxxxxx, Notary Public
Basel, Switzerland
CERTIFIED DOCUMENT
ACQUISITION AND TRANSFER AGREEMENT
Negotiated in Basel, Switzerland, on April 29 (in words: twenty-nine), 2000 (in
words: in the year two thousand).
The following persons appeared before me,
Xx. Xxxxxx Xxxxxxxxx,
the undersigned Notary Public, Basel, Switzerland:
1. Xx. Xxxxxx Xxxx-Xxxxxxxxxx; date of birth: March 19, 1968; Jurist;
Swiss citizen; domiciled in In the Xxx 00, XX - 0000 Xxxxxx,
[Xxxxxxxxxxx]; personally known to the Notary Public;
acting, according to her statements, not on her own behalf but on
behalf of the following entity, subject to the exclusion of all
liability:
Mannesmann Demag Xxxxxx-Xxxxxx Aktiengesellschaft, [a German stock
corporation]; headquartered in Munich, [Federal Republic of Germany];
domiciled in Xxxxxx-Xxxxxx-Xxxxxxx 0, X - 00000 Xxxxxx, [Xxxxxxx];
registered with the Commercial Register of the District Court, Munich,
[Germany], under the number HRB 127000;
in accordance with the attached facsimile copy of the power of attorney
dated April 28, 2000 (Attachment 1) and subject to later submission of
the certified original of such power of attorney; and
2. Xx. Xxxx Xxxxx, lic. iur.; date of birth: January 8, 1971; Attorney at
Law; Swiss citizen; domiciled in Ob dem Hugliacker 00, XX - 0000
Xxxxxxxxx, [Xxxxxxxxxxx]; personally known to the Notary Public,
acting, according to his statements, not on his own behalf but on
behalf of the following entity, subject to the exclusion of all
liability:
ROFIN-SINAR Laser GmbH; headquartered in Hamburg, [Federal Republic of
Germany] and registered with the Commercial Register of the Xxxxxxxx
Xxxxx, Xxxxxxx, [Xxxxxxx], under the number HRB 18044;
in accordance with the attached facsimile copy of the power of attorney
dated April 28, 2000 (Attachment 2) and subject to later submission of
the certified original of such power of attorney.
The Notary Public explained the prohibition of participation under both the
Notary Public Act [Notariatsrecht] of the City of Basel, [Switzerland] (EG/ZGB
ss. 233 para 1 item 4) and the German Notarization Act [Beurkundungsgesetz] (ss.
3 para 1 no 7). The participating parties, as well as the Notary Public himself,
denied any prior involvement [in the matter at hand], in the sense of the
aforementioned provisions, on the part of the Notary Public, his partners, or
other persons who
are either affiliated with the Notary Public for the purpose
of jointly carrying out professional duties or who work in the same offices.
The persons appearing today, acting as set forth above, declare the following
and request certification thereof:
[Introduction]
We hereby conclude the following
ACQUISITION AND TRANSFER AGREEMENT
between
Mannesmann Demag Xxxxxx-Xxxxxx AG
(hereinafter referred to as "MDKM"),
on the one hand,
and
ROFIN-SINAR Laser GmbH
(hereinafter referred to as the "Buyer"),
on the other hand.
In the following, MDKM and the Buyer are also referred to as the "party" or the
"parties."
Table of Contents
Page
Acquisition Agreement
[Introduction]
Preface
Article 1 Acquisition and Transfer of Shares
Article 2 Purchase Price
Article 3 Guaranties
3.1 Legal Conditions
3.2 Annual Financial Statements as of December 31, 1999
3.3 Real Property Leases
3.4 Litigation, etc.
3.5 Intellectual Property Rights
3.6 Disclosure of Specific Agreements
3.7 Employees
3.8 Events since January 1, 2000
3.9 Taxes
3.10 Business Relations with the Mannesmann Group
3.11 Contaminated Sites
3.12 Plant Management
3.13 Tangible Assets
3.14 Know-How
3.15 Disclosure of Material Facts
Article 4 Breach of Warranties
Article 5 Prohibition of Competition
Article 6 Additional Obligations
Article 7 Costs and Taxes
Article 8 Closing Provisions
[initials]
Preface
1. MDKM holds three shares with a par value of DEM 3,000,000, DEM 480,400, and
DEM 120,000 representing a total equity stake of 90.01 % with a par value
of DEM 3,600,400 in Xxxx Xxxxxx Lasertechnik GmbH, a company that is
registered with the Commercial Register [Handelsregister] of the District
Court, Munich, Federal Republic of Germany, under number HRB 70075 and has
a total capital stock of DEM four million. (Xxxx Xxxxxx Lasertechnik is
hereinafter referred to as "CBL GmbH" and the stake of MDKM in CBL GmbH is
hereinafter referred to as the "MDKM equity stake.") Xx. Xxxx Xxxxxx holds
two shares with a par value of DEM 380,000 and DEM 19,600 representing a
total equity stake in CBL GmbH of 9.9% with a par value of DEM 399,600.
2. Pursuant to the certification (Register of Authors, No. 3374/1999) by a
Notary Public, Xx. Xxxxx, whose offices are located in Munich, Germany,
MDKM and Xx. Xxxx Xxxxxx concluded an Option Agreement, which is attached
hereto as Appendix 1, concerning the equity stake of Xx. Xxxxxx in CBL GmbH
(hereinafter referred to as the "Option Agreement"). Under this Option
Agreement, MDKM and Xx. Xxxxxx mutually granted each other the option of
selling and buying, respectively, the equity stake of Xx. Xxxxxx in CBL
GmbH for a base purchase price of DEM 12,287,000. However, MDKM may not
exercise its purchase option before January 1, 2003, subject to a period of
notice of one month. Xx. Xxxxxx may exercise his option to sell at any
time, however, no later than December 31, 2007, subject to a period of
notice of one month.
3. CBL GmbH specializes in the manufacture, distribution, and maintenance of
lasers, laser systems, electrical optical components, as well as electronic
equipment. The company maintains the branch offices and facilities set
forth in Appendix 2.
[initials]
4. CBL GmbH holds equity stakes in the following subsidiaries:
a) A 100% stake in A-B Laser Inc., 0 Xxxxx Xxxx, Xxxxx, XX 00000, whose
capital stock is USD 1,020,097;
b) A 100% stake in Baasel Lasertech Italia S.r.l., Xxx Xxxxx 00, X -
00000 Xxxxxxx Xxxxx, Xxxxx, whose capital stock is ITL 199,000,000;
c) A 90% stake in Baasel Lasertech S.a.r.L., 0, Xxx x'Xxxxxxxx x'Xxxxx, X
- 00000 Xxxxxxxxxxx Cedex, France, whose capital stock is FRF 500,000;
the remaining ten percent equity stake is held by Xx. Xxxx Xxxxxxxx,
Xxx xx Xxxxxxx, X - 00000 Xxxxx x'Xxxxx, Xxxxxx;
d) A 99% stake in Baasel Lasertech Espana S.A., Piazza M. Xxxxxxx Xxxxxxx
1-6, E - 08870 San Xxxx Xxxxx, Spain, whose capital stock is ESP
10,000,000; the remaining one percent equity stake is held by Xx.
Xxxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx 0-0, X - 00000 Xxx Xxxx Xxxxx,
Xxxxx;
e) A 100% stake in Baasel Lasertech Benelux B.V., Xxxxxxxxx 00, XX - 2952
AD Alblasserdam, The Netherlands, whose capital stock is NLG 100,000;
f) A 100% stake in Baasel Lasertech (UK) Ltd., Beech Tree House, Sopwith
Way, Drayton Fields, Daventry NN 11 5PB, Great Britain, whose capital
stock is GBP 100,000;
[initials]
g) A 100% stake in Baasel Lasertech Asia Pte. Ltd., 00 Xxxxxxxxxxxxx
Xxxxxxxx Xxxx, 00-00 Xxxxxxxxxx Xxxxxx, X0x - Xxxxxxxxx 609 929,
Singapore, whose capital stock is SGD 200,000;
h) A 100% stake in WB Laser Xxxxxxx + Baasel Laser und elektrooptische
Gerate GmbH, Xxxxxxxxxxxxxxxxx 00, X - 00000 Xxxxxx, Xxxxxxx, whose
capital stock is DEM 655,000 and which is registered with the
Commercial Register of the Munich District Court under number HRB
69176; and
i) A 100% stake in PMB Elektronik XxxX, Xxxxxxxxxxx 00, X - 00000
Xxxxxxxxx, Xxxxxxx, whose capital stock is DEM 100,000 and which is
registered with the Commercial Register of the Munich District Court
under number HRB 76114.
The companies enumerated in item 4 of the Preface are hereinafter referred
to as "CBL Subsidiaries." CBL GmbH and the CBL Subsidiaries are hereinafter
jointly referred to as the "CBL Group."
5. The Buyer wishes to acquire from MDKM the MDKM equity stake, as well as its
rights and duties under the Option Agreement.
Now, therefore, the parties to this Agreement stipulate the following:
Article 1
Acquisition and Transfer of Shares
1.1 Effective January 1, 2000, at 00:00 hours, in economic terms (hereinafter
referred to as the "effective date"), MDKM hereby sells and transfers the
MDKM equity stake in CBL GmbH to the Buyer. The Buyer hereby accepts such
transfer. The equity stake sold in accordance with this Article 1.1 is
hereinafter also referred to as the "equity stake sold."
[initials]
1.2 The sold equity stake is sold and transferred including the right to
participate in profits as of the effective date, as well as including the
right to participate in dividends not yet distributed for preceding fiscal
years. Specifically, the Buyer agrees that the net income of CBL GmbH for
fiscal 1999 in the amount of EUR 3,856,124 (gross) shown in the balance
sheet has already been distributed and thus shall remain with the Seller.
1.3 The transfer stipulated in Article 1.1 shall be effected subject to the
conditions precedent
a) that the Buyer has made the payment required under Article 2.1 and
b) that the competent corporate organs of MDKM (including the competent
corporate organs of MDKM's shareholder) have approved the present
Agreement.
The date on which the aforementioned conditions precedent are met is
hereinafter also referred to as the "date of transfer." The day that
follows two banking days after the Buyer has been notified, in writing,
that the conditions precedent set forth in para b above have been met is
hereinafter referred to as the "closing date."
If the conditions precedent set forth in para b above have not been met by
midnight on May 31, 2000, or if the parties have waived the conditions
precedent, to the extent permissible under law, each party shall have the
right to withdraw from this Agreement; such withdrawal shall not give the
other party the right to make any claims (such as
claims for damages, claims under culpa in contrahendo, etc.). In this case,
the original bank guarantee in the amount of EUR 44,364,277, which was
submitted to MDKM prior to the notarization of this Agreement, must be
returned to the Buyer immediately; loans, if any, granted by the Buyer to
the CBL Group companies after the cash pooling deadline
[initials]
must also be repaid immediately, plus interest of 3.5% per annum from the
date on which such loans were granted. In such an event, any collateral
provided by the Buyer from the date of this Agreement for the benefit of
the CBL Group companies must either be redeemed by MDKM or assumed by MDKM
in a manner that has the effect of discharging the obligation of the
respective CBL Group companies.
Article 2
Purchase Price
2.1 The purchase price for the equity stake sold shall be EUR 44,364,277 (in
words: forty-four million three hundred and sixty-four thousand two hundred
and seventy-seven euros). The purchase price shall be due and payable on
the closing date and shall be deposited in MDKM's bank account, number
183175900, with Deutsche Bank, Munich, Germany (bank routing number 700 700
10).
2.2 In addition, the Buyer shall repay to MDKM, on account of CBL GmbH, the
loans totaling EUR 23,376,835 that were granted by MDKM to CBL GmbH and/or
the CBL Subsidiaries as of December 31, 1999 (Appendix 2.2); the aforesaid
amount shall be deposited in the bank account set forth in Article 2.1.
This payment shall be due on the closing date, however, at the earliest
five banking days from the date of this Agreement.
Upon expiration of the fifth banking day from the date of this Agreement,
MDKM shall remove the CBL Group companies from the internal cash pooling
system (this date has been and is hereinafter referred to as the "cash
pooling deadline"). As of the date of this Agreement, MDKM shall no longer
provide any guaranties or sureties on behalf of the CBL Group companies and
shall not execute any currency futures contracts.
If the loans shown on the cash pooling account of CBL GmbH (including the
CBL Subsidiaries) as of midnight on the cash pooling deadline exceed the
amount of EUR 23,376,835, the Buyer shall transfer the difference to the
bank account set forth in Article 2.1. If the
[initials]
loans shown are less than EUR 23,376,835, the difference shall be paid by
MDKM to the Buyer's bank account, number 0000000, with Deutsche Bank,
Hamburg, Germany (bank routing number 200 700 00). Foreign exchange
liabilities on the cash pooling account shall be converted into euros at
the reference exchange rate of the European Central Bank as of the cash
pooling deadline. MDKM shall notify the Buyer, in writing, within ten
banking days of the date of this Agreement, of the credit/debit balance in
the cash pooling account (including compound interest as of April 30,
2000). Any amount above or below EUR 23,376,835, plus interest of 3.5% per
annum from the beginning of May until the date of payment of such amount,
shall be paid by the obligor to the other party within three banking days
of the date of service of the written notification, however, at the
earliest on the closing date. Article 259 German Civil Code [Burgerliches
Gesetzbuch - BGB] shall apply. Any amounts resulting from accounting errors
shall be paid immediately by the respective party.
2.3 The Buyer shall not have the right to offset the payments to be made
pursuant to Articles 2.1 and 2.2 or to claim a right of retention with
regard thereto.
Article 3
Guaranties
MDKM warrants, in the sense of an independent promise of warranty, that the
following statements were true and complete as of March 31, 2000, unless
expressly stipulated otherwise:
3.1 Legal Conditions
a) Each company that belongs to the CBL Group is a company that was duly
organized and exists under the laws of the state in which it was
established. The MDKM equity share and the shares in the CBL
Subsidiaries that are held by CBL GmbH were paid in full and have not
been repaid, neither overtly nor covertly. None
[initials]
of the CBL Group companies are obligated to grant additional shares to
third parties.
b) MDKM is the sole and unrestricted owner of the equity stake sold. CBL
GmbH is the sole and unrestricted owner of the equity stakes in the
CBL Subsidiaries that are held by it in accordance with item 4 of the
Preface. MDKM has the unrestricted right to transfer the equity stake
sold to the Buyer. The equity stake sold and the equity stakes in the
CBL Subsidiaries that are held by CBL GmbH were effectively granted,
and there are no additional contributions thereon outstanding. In case
of a subsequent sale of the equity stake sold, neither third parties
nor MDKM shall have the right to claim rights of first refusal or
similar rights in regards thereto. The equity stake sold and the
equity stakes of CBL GmbH in the CBL Subsidiaries have not been
pledged or encumbered by third-party rights (in the sense of ss.434
ff. German Civil Code), unless disclosed in Appendix 3.1.
c) Neither this Agreement nor its performance represent a violation of
contracts that are binding on MDKM or the CBL Group companies.
d) The CBL Group companies do not hold equity stakes, neither directly
nor indirectly, in other stock corporations or partnerships, with the
exception of those set forth in the Preface. CBL GmbH does not have
the obligation to sell, in whole or in part, its equity stake in a CBL
Subsidiary or to acquire equity stakes in other companies.
e) The statements set forth in items 1 through 5 of the Preface are
correct.
[initials]
The aforementioned warranties were given as of the date of transfer of the
equity stake sold.
3.2 Annual Financial Statements as of December 31, 1999
The partially consolidated pro-forma Group statement of CBL GmbH, as well
as the annual financial statements of CBL GmbH, A-B Laser Inc., and WB
Laser Xxxxxxx +
Baasel Laser und elektrooptische Gerate GmbH for the year ended December
31, 1999 (each of which consists of a balance sheet, the profit and loss
statement, and, if the respective company is a stock corporation, the Notes
and possibly the annual report), were audited and granted a certificate of
audit. The financial statements were prepared in accordance with statutory
prescriptions of the German Commercial Code concerning annual financial
statements or Group statements, as well as generally accepted accounting
principles (including the accounting rules that apply at Mannesmann), while
maintaining the formal and material principle of continuity (hereinafter
jointly referred to as "GAAP"). The following measures were taken in
accordance with GAAP: reserves were created for all risks known as of the
balance sheet date, and valuation adjustments and deprecation were made or
taken, respectively, as necessary. The CBL Group companies did not have any
liabilities as of the balance sheet date that must be shown according to
GAAP and that had not been posted as liabilities according to GAAP in the
aforementioned annual financial statements. Only assets that existed as of
the balance sheet date and that were owned, full and clear, by the
respective company are shown in the annual financial statements at nominal
valuations in accordance with GAAP, with the exception of reservations of
title inuring to suppliers, statutory rights of lien, transfers and
assignments by way of security for bank liabilities, etc.
3.3 Real Property Leases
a) Appendix 3.3 contains a list of all real property rental contracts and
lease agreements (with the exception of contracts concluded between
the CBL Group
[initials]
companies) that have a duration of more than two years or that require
a CBL Group company to make annual rent or lease payments in excess of
DEM 100,000 or the equivalent in other currencies (hereinafter
referred to as "material real property leases").
b) MDKM is not cognizant of any breaches of the material leases which
would entitle the owner of the respective real property to early
termination of the respective lease.
3.4 Litigation, etc.
With the exception of the company/companies set forth in Appendix 3.4, none
of the CBL Group companies are party, either as plaintiffs or as
defendants, to legal disputes (including arbitration proceedings) with an
amount in controversy of more than DEM 100,000 (excluding costs and fees)
or the equivalent in other currencies. MDKM is not cognizant of any
circumstances that are likely to result in such legal disputes.
3.5 Intellectual Property Rights
Appendix 3.5 contains a list of all patents, patent applications,
trademarks, and other intellectual property rights that have been
registered on or for account of a CBL Group company. With the exception of
the facts set forth in Appendix 3.4, MDKM is not cognizant of any
violations, on the part of any CBL Group company, of intellectual property
rights belonging to third parties or of any violations, on the part of
third parties, of intellectual property rights belonging to CBL Group
companies. With the exception of the facts set forth in Appendix 3.4, to
date none of the CBL Group companies have been accused or advised,
respectively, in writing, of having violated the intellectual property
rights of a third party or of the need to purchase a license from a third
party.
[initials]
CBL GmbH has the right to use the company name "Xxxx Xxxxxx Lasertechnik
GmbH," independent of licenses, if any.
3.6 Disclosure of Specific Agreements
Appendix 3.6 contains a complete list of all agreements and contracts
executed by CBL Group companies that satisfy the following criteria:
a) Lease agreements (unrelated to real property) that stipulate annual
payments in excess of DEM 250,000 or the equivalent in other
currencies;
b) Cooperation or joint venture agreements with a fixed duration of more
than two years as of the effective date;
c) Licensing agreements that were concluded by a CBL Group company as
licensor or licensee and that required payments in 1999 for licensing
fees in excess of DEM 50,000 or the equivalent in other currencies;
d) Warranties and sureties granted by a CBL Group company, with the
exception of performance guaranties, payment guaranties, warranties,
or similar guaranties;
e) Material insurance contracts;
f) Agreements that may be terminated in light of the change in
shareholders of CBL GmbH stipulated in this Agreement;
g) Miscellaneous agreements/contracts signed by a CBL Group company that
have a value of more than DEM 250,000 per year or a total value of
over DEM 500,000 and that have not yet been enumerated in Article 3.6
para a through f;
[initials]
h) Agreements/contracts that contain prohibitions of competition and have
not yet been enumerated in Article 3.6 para a through g; as well as
i) Corporate agreements in the sense of ss. 291 German Stock Corporation
Act [Aktiengesetz - AktG] or ss. 292 German Stock Corporation Act, or
agreements concerning the establishment of silent partnerships, with
the exception of the profit pooling agreement between PMB Elektronik
GmbH and CBL GmbH.
MDKM is not cognizant of any terminations, as of the date of this
Agreement, of any of the agreements/contracts set forth in Appendix 3.6 or
of any threatened termination.
3.7 Employees
a) Appendix 3.7 contains a list of all employees (including managing
directors) of the CBL Group companies, who (i) are paid a fixed annual
salary in excess of DEM 120,000 (excluding bonuses, performance pay,
etc.) or the equivalent in other currencies or (ii) who have been
granted contractual retirement benefits.
b) The CBL Group companies are not involved in any material disputes with
unions.
3.8 Events since January 1, 2000
With the exception of the events set forth in Appendix 3.8 and described in
this Agreement or an Appendix thereto, none of the events described below
have occurred between January 1, 2000, and the date of this Agreement:
a) Changes in the capitalization of a CBL Group company;
withdrawal/redemption of the equity stakes sold; changes in the voting
or other
[initials]
rights related to the equity stakes sold; or changes of the by-laws of
the CBL Group companies;
b) Acquisitions or sales, by CBL Group companies, of equity stakes or
interests in other stock corporations or partnerships;
c) Individual investments of more than DEM 500,000 or the equivalent in
other currencies in the assets of a CBL Group company;
d) Damage to, or loss or destruction of material operating assets of any
CBL Group company;
e) Increases of more than five percent in the fixed salaries paid to
employees (including managing directors) in fiscal 1999, or increases
of more than five percent in the valuation basis used to determine
variable compensation, compared to the valuation basis that applied in
the calendar year 1999;
f) Assumption of significant obligations above and beyond ordinary
levels, i.e. individual obligations that exceed DEM 50,000 per annum
and total obligations that exceed DEM 500,000 per annum;
g) Changes in the rules governing cash pooling transactions between the
CBL Group companies; and
h) Dividend payments by CBL GmbH, with the exception of the dividend
payment set forth in Article 1.2.
[initials]
MDKM shall utilize its shareholder rights between the date of this
Agreement and the closing date to ensure that none of the events described
in para a through g above will occur. MDKM will immediately notify the
Buyer should such an event occur nevertheless.
3.9 Taxes
a) All tax returns, prepayment notices (including monthly prepayment
reports), and other returns and reports related to income and payroll
taxes, as well as public charges and contributions (including fees,
duties, currency transfers, as well as payments to professional
associations and the Federal Social Security Office for Salaried
Employees [Bundesversicherungsanstalt fuer Angestellte], etc.) that
are required of the CBL Group companies until the transfer of the
equity stake sold are complete and accurate and were filed in due
time, and all related payments (including prepayments), as well as
late fees and penalties, have been made. As of December 31, 1999, none
of the CBL Group companies had any tax liabilities for which reserves
were not created in the annual financial statements set forth in
Article 3.2. All withholding and payroll taxes as of December 31,
1999, were duly
determined and deducted, as well as paid, if they were due and payable
as of December 31, 1999.
b) MDKM shall be responsible for any additional assessments of the CBL
Group companies regarding taxes or any of the fees and charges set
forth in Article 3.9 para a (e.g. as a result of comprehensive tax
audits) for the time until December 31, 1999, that were not shown or
deferred in the annual financial statements set forth in Article 3.2.
However, this
[initials]
shall apply only if and to the extent that any additional assessment
of this nature does not give rise to future tax or charge abatements
resulting from period shifts. If a tax assessment is issued, which is
enforceable but not final and absolute, MDKM shall undertake to make
available to the Seller, no later than three working days prior to the
due date, the approximate additional tax assessments to be paid in
accordance with the aforementioned provisions. Conversely, the Buyer
shall ensure that tax refunds, if any, which are related to periods
preceding the deadline but were not shown as assets in the annual
financial statements set forth in Article 3.2, are immediately
transferred from CBL GmbH to MDKM.
3.10 Business Relations with the Mannesmann Group
Less than five percent of the total gross sales of the CBL Group companies
in the calendar year 1999 were generated through MDKM or its affiliates. In
addition, the CBL Group companies procured less than five percent of total
purchases in the calendar year 1999 from MDKM or its affiliates. MDKM and
its affiliates do not supply products or services to the CBL Group
companies that could not be obtained from third parties at customary market
prices. With the exception of the real property leases and the cash pooling
agreement, there are no contractual relationships between the companies of
the Baasel Group, on the one hand, and MDKM and its affiliates, on the
other hand, whose termination would make it impossible to independently
maintain the CBL Group companies.
3.11 Contaminated Sites
To the best of MDKM's knowledge and belief, the CBL Group companies do not
currently utilize any real property or facilities that have been
[initials]
contaminated by a CBL Group company in a manner that would require such
contamination to be removed pursuant to current laws.
The warranty set forth in the preceding sentence is provided as of the date
of transfer of the equity stake sold.
3.12 Plant Management
As far as MDKM knows, the current operations of the CBL Group companies do
not violate statutory requirements that are material to the continuation of
these businesses at the current level. The preceding warranty is given as
of the date of transfer of the equity stake sold.
3.13 Tangible Assets
To the best of MDKM's knowledge and belief, which was gained through
specific inquiries, the movable property of the CBL Group companies is duly
maintained and in a condition commensurate with its age. These assets
enable the CBL Group companies to continue manufacturing their products. As
far as MDKM knows, all moveable assets (with the exception of the rights
set forth in the last sentence of Article 3.2) are clear of third-party
rights, including the right to utilize or co-utilize them. The preceding
warranty is given as of the date of transfer of the equity stake sold.
3.14 Know-How
To the best of MDKM's knowledge and belief, the current employees of
the CBL Group companies possess the production, processing, and
distribution know-how required for running the business of the CBL Group
companies
[initials]
in the currently prevailing manner and for manufacturing the product range
currently produced by the CBL Group companies. The preceding warranty is
given as of the date of transfer of the equity stake sold.
3.15 Disclosure of Material Facts
There are no material facts or circumstances pertaining to the condition of
the CBL Group which were disclosed by the principal negotiators of MDKM
(Xx. Xxxxx Xxxxxx or Xx. Xxxxxx Xxxx) at the request of the Buyer or its
consultants during the negotiations on April 27 and 28, 2000, in a manner
that was intentionally incorrect or incomplete, and no such material facts
or circumstances were withheld. "Material facts or circumstances" in the
sense of this warranty refer to facts, which, in the view of MDKM's
negotiators, would obviously compel the Buyer, in application of due care
and diligence, to reduce by more than ten percent the purchase price
offered by the Buyer and stipulated in Article 2.1. The negotiators of MDKM
reasonably relied on the accuracy and completeness of the information
provided to them by other persons.
The preceding warranty does not limit the Buyer's rights under this
Agreement or its statutory rights, unless such rights are effectively
excluded or restricted in this Agreement.
Article 4
Breach of Warranties
4.1 The Buyer shall immediately notify MDKM of any breach of the warranties set
forth in Article 3 and, in a first step, shall give MDKM the opportunity to
cure the respective breach of warranty within a reasonable time period. To
this end, the Buyer must give MDKM access to the documents necessary for
evaluating the facts and provide all pertinent information
[initials]
that MDKM needs in order to review whether the warranty was, in fact,
breached and in order to defend against claims for damage, if any. If a
warranty set forth in Article 3 is breached, MDKM shall reimburse to the
Buyer any loss resulting therefrom,
a) if MDKM does not declare its intention to the Buyer, within two weeks
of the latter's written notification of breach, that MDKM plans to
cure the breach of warranty within a reasonable time period; or
b) if MDKM has declared, within due time, that it intends to cure the
breach but has not carried out its intention within a reasonable time
period, i.e. within two months, at the latest; or
c) if curing the breach is impossible in and of itself.
In this case, the Buyer must endeavor, to the best of its abilities, to
limit the loss stemming from the breach of warranty to the extent possible.
Whatever the case may be, the Buyer shall not be liable for indirect
damages or for lost profits.
4.2 The Buyer shall only have the right to make claims for damages pursuant to
Article 4.1 if and to the extent that the loss is not covered by (i) items,
reserves, individual or general allowances, or similar measures pertaining
to the respective risks in the annual financial statements set forth in
Article 3.2 or (ii) an insurance policy.
4.3 If third parties make claims for damages against the Buyer or a CBL Group
company, which could result in liability on the part of MDKM pursuant to
Article 4.1, the Buyer shall give MDKM the opportunity to defend against
such claims at MDKM's expense. The Buyer shall permit MDKM to participate,
at the latter's expense, in all negotiations and written correspondence
with the relevant
[initials]
third parties. At the request of MDKM, the Buyer shall cause the respective
CBL Group company to litigate against third parties according to the
instructions of MDKM; the latter shall bear all costs therefor. In order to
permit MDKM to review whether the third-party claims are justified and to
assess the chances of a legal dispute, as well as to litigate the matter,
if applicable, the Buyer or the respective CBL Group company shall make
available to MDKM all pertinent documents and information, as well as grant
MDKM the right to inspect the books and records of the CBL Group companies
and to question the employees of the CBL Group company concerned. In
defending against claims of the aforementioned nature, MDKM shall take into
account the business interests of the CBL Group. If MDKM and the Buyer
arrive at different conclusions concerning the chances of a lawsuit
involving clients or government entities (whether they are sued or bring an
action themselves), at the Buyer's request MDKM shall submit the expert
opinion of a renowned law firm which confirms that individual claims or all
claims made in connection with such litigation are most likely to succeed.
The costs of such a confirming expert opinion shall be borne by the Buyer,
in analogous application of ss. 91 German Rules of Civil Procedure
[Zivilprozessordnung - ZPO]. If it is not confirmed that such litigation is
most likely to succeed, the Buyer or the respective CBL Group company may
accept the respective claim for damages, in whole or in part, taking into
consideration due diligence requirements.
4.4 The Buyer may not make any claims for breach of warranty, if Xx. Xxxxx
Xxxxx or Xx. Xxxxxxx Xxxxx knew that a warranty given pursuant to Article 3
does not apply, is incomplete, or was not complied with. In this
connection, the parties acknowledge that the Buyer (i) carried out only a
limited due diligence procedure and (ii) received the
[initials]
annual financial statements set forth in Article 3.2. The information
provided by MDKM in this Agreement is correct and complete.
4.5 Any claims on the part of the Buyer under or in connection with this
Agreement, for whatever cause, shall be precluded, unless and if they are
submitted to MDKM within six
months of the date on which the Buyer gains knowledge of the facts
underlying such claim, but no later than by June 30, 2001. Under the
statute of limitations, claims resulting from events related to Article
3.11 (contaminated sites) shall expire three years from the effective date
and claims related to Article 3.9 (taxes) shall expire six months from the
date of the final and absolute tax assessment. The statute of limitations
on individual claims shall be suspended for a period of eight weeks from
the date of receipt of the written notification in which the individual
claims and all pertinent facts are described in detail.
4.6 In case the warranty under Article 3.9 para b is breached and if tax and
charge abatements are issued for the benefit of the respective CBL Group
company due to shifts in periods that have not yet closed at the time the
Buyer makes the respective claim (hereinafter referred to as the "future
periods"), the parties shall endeavor to determine the present value of
such future abatement. If the parties cannot agree on the present value,
the Buyer may determine the settlement amount to be paid by MDKM, without
taking into account, initially, the abatement in future periods in regards
to which no agreement was reached. In such a case, the Buyer shall
undertake, immediately upon close of each of the subsequent fiscal years,
to account for all abatements received in the preceding fiscal year and to
allow representatives of MDKM, who are obligated to maintain
confidentiality, to inspect the pertinent documents.
[initials]
4.7 The Buyer may only make claims for breach of warranty if the claims exceed
DEM 10,000 individually and DEM 500,000 (or the equivalent in other
currencies) in their totality; claims exceeding these amounts shall not be
restricted to the excess amount. The amount of all claims made by the Buyer
under or in connection with this Agreement shall be limited to a total of
17% of the purchase price set forth in Article 2.1 or the equivalent
thereof in other currencies. This limitation shall not apply to claims
under Articles 3.1 para a, b, d, and e; as well as under Articles 3.9,
3.11, and 3.15.
4.8 All express or implied warranties, which should be given by operation of
law or for other reasons in addition to those set forth in Article 4, shall
be barred, with the exception of claims resulting from intentional conduct
and fraudulent misrepresentation. Further, all other and additional claims
and rights (including claims arising from liabilities under prospectuses)
which should be given by operation of law or otherwise in addition to those
set forth in Article 4.1, shall be barred, with the exception of claims for
performance and other rights established by this Agreement, as well as
claims resulting from intentional conduct and fraudulent misrepresentation.
Without undermining the general applicability of the preceding provision,
the aforementioned liability exclusion shall apply to all claims and rights
on whatever legal grounds (contractual, preliminary, in tort, or
otherwise), specifically, all rights and claims that would result in an
annulment of or withdrawal from this Agreement and all other rights and
claims that would have the same effect.
4.9 To the extent that a warranty is given on the basis of the information and
belief of MDKM, solely the factual information and belief of the persons
set forth in Appendix 4.8 shall be authoritative. The persons enumerated in
Appendix 4.8 have
[initials]
confirmed to MDKM that they are not cognizant of any facts that would
result in a breach of the warranties set forth in Article 3.
Article 5
Prohibition of Competition
5.1 For a period of three years following the effective date, MDKM may not,
directly or indirectly,
a) establish a company that competes with the current business activities
of the CBL Group companies;
b) acquire a majority stake (capital or voting rights) in a company that
competes with the current business activities of the CBL Group
companies; or
c) compete in any other manner with the CBL Group companies.
5.2 The prohibition of competition pursuant to Article 5.1 shall not apply to:
a) the current business activities of MDKM or its affiliates;
b) the acquisition of a majority stake (capital or voting rights) in a
company whose primary activities do not compete with the current
business activities of the CBL Group companies, unless acquiring the
competing activity was the main purpose of such acquisition; and
c) the acquisition of a minority stake (capital and voting rights) in a
company that competes with the current business activities of the CBL
Group companies.
[initials]
5.3 MDKM shall maintain strict confidentiality concerning the business and
trade secrets of the CBL Group companies.
Article 6
Additional Obligations
6.1 As of the effective date, the Buyer shall enter into all warranties,
guaranties, and sureties of any kind (including back-to-back warranties and
back-to-back guaranties toward banks or third parties), which are
enumerated in Appendix 6.1 under the heading "Group Guaranties" and under
the heading "Bank Guaranties," as well as the economic risk related to the
business activities set forth in Appendix 6.1 which were taken on by MDKM
or one of its affiliates on behalf of the CBL Group companies. Without
assuming additional financial obligations, the Buyer shall endeavor, to the
best of its ability, to ensure that the aforementioned guaranties are
released immediately. In case guaranties are not released, the Buyer shall
hold MDKM and its affiliates harmless from any of the warranties,
guaranties, and sureties enumerated in Appendix 6.1. If the Buyer has not,
within 30 days of the closing date, caused the aforementioned guaranties to
be released, it shall submit to MDKM, for the purpose of securing such
claim for release, an unlimited guaranty, payable upon first demand, issued
by a major German bank for an amount that equals the sum total of all
guaranties, sureties, etc. enumerated in Appendix 6.1, however, not to
exceed DEM 6,500,000. The amount of such bank guaranty shall be reduced
successively as the guaranties enumerated in Appendix 6.1 are released. If
warranties, guaranties, and other sureties, which were assumed by MDKM or
one of its affiliates on behalf of CBL Group companies, were inadvertently
not included in Appendix 6.1, the parties shall agree, in economic terms,
that the risks secured thereby shall finally remain with the CBL Group
companies.
[initials]
6.2 The Buyer shall ensure that the CBL Group companies cease, no later than
six months from the date of this Agreement, to use prospectuses, brochures,
or other documents that contain the names "Mannesmann," "Demag,"
"Xxxxxx-Xxxxxx," or any other designations capable of being confused with
the aforementioned names.
6.3 MDKM undertakes hereby, subject to the conditions precedent set forth in
Article 1.3, to transfer its rights and duties under the Option Agreement
to the Buyer in a separate contract, with the effect of being released from
its obligations. The Buyer undertakes to conclude such a contract and to
accept such transfer. MDKM warrants that the aforementioned contract shall
be concluded no later than June 15, 2000. In terms of the internal
relationship between the Buyer and MDKM, as of the date on which this
Agreement is notarized, the Buyer shall hold MDKM harmless from all claims
under or in connection with the exercise of the options, as well as under
or in connection with contractual violations on the part of the Buyer (or
third parties to which the Buyer has transferred the Option Agreement).
Specifically, if Xx. Xxxxxx exercises his option to sell before the Option
Agreement is transferred, the Buyer shall reimburse to MDKM the purchase
price for the equity stakes held by Xx. Xxxxxx, in return for the transfer
to the Buyer of these equity stakes. Further, the Buyer shall ensure that
the guaranty stipulated in ss. 4.2 para b of the Option Agreement shall be
made available at the request of Xx. Xxxxxx.
MDKM warrants that, upon conclusion of the aforementioned agreement, the
Buyer shall be the effective owner of the purchase option pursuant to ss. 1
of the Option Agreement and that the Buyer may exercise such purchase
option in accordance with the provisions of the Option Agreement.
6.4 The Buyer shall permit representatives of MDKM to participate, at the
latter's expense, in all comprehensive tax audits of the CBL Group
companies related to periods preceding the effective date, as well as in
pertinent negotiations and the
[initials]
correspondence with the revenue authorities. Absent the prior consent of
MDKM, the Buyer shall not make any admissions or concessions toward the
revenue authorities or settle any disputes. The parties shall endeavor to
ensure that any comprehensive audit of CBL GmbH with regard to periods
preceding the effective date are carried out as quickly as possible. At the
request of MDKM, the Buyer shall instruct the respective CBL Group company
to appeal any tax assessments, which would result in additional tax
payments on the part of MDKM pursuant to Article 3.9, in accordance with
the instructions of MDKM; the latter shall bear all costs related thereto.
Article 4.3 shall apply analogously.
6.5 The parties shall execute all documents and take all remaining measures
that are necessary for meeting the requirements of this Agreement, even
after it has been notarized.
6.6 The Buyer has been advised that as of the date of this Agreement, Xx. Xxxxx
Xxxxxxx has a right to return to MDKM; all related costs shall be borne by
MDKM. The royalties inuring to Xx. Xxxxxxx for 1999 shall be borne by CBL
GmbH, provided reserves were created for this purpose in the 1999 financial
statement of CBL GmbH.
6.7 If one of the parties withdraws from this Agreement because the condition
precedent set forth in Article 1.3 para b has not been satisfied, the
Seller undertakes, for a period of six months from the date of this
Agreement, to negotiate any sale of the equity stake sold exclusively with
the Buyer.
Article 7
Costs and Taxes
7.1 The transfer taxes (including any real property acquisition taxes), fees
(including the notary public's fee), public charges, and costs incurred in
connection with
[initials]
this Agreement and its implementation shall be borne by the Buyer.
7.2 Each party shall be responsible for the taxes and costs incurred in
connection with its own consultants.
Article 8
Closing Provisions
8.1 If a provision of this Agreement or a provision included therein in the
future is or becomes ineffective or unenforceable, the remaining provisions
of this Agreement shall not be affected thereby. The same shall apply if
this Agreement contains lacunae, if any. The ineffective or unenforceable
provision shall be replaced, or the lacuna shall be closed, by a suitable
provision, which, to the extent permissible under the law, approximates as
closely as possible the intent of the parties or what they would have
intended, given the purpose of this Agreement, had they contemplated the
matter at the time this Agreement was concluded. The same shall apply if a
provision is ineffective due to its stipulated scope or timeframe.
8.2 This Agreement shall be subject to the laws of the Federal Republic of
Germany. The headings in this Agreement shall not affect its
interpretation.
8.3 The term "affiliate" shall have the meaning imputed to it in ss. 15 German
Stock Corporation Act; in this connection, Mannesmann AG shall be
considered the controlling entity.
8.4 Modifications of and amendments to this Agreement shall be made in writing
to be effective, unless applicable laws prescribe stricter formalities.
8.5 The parties shall endeavor to resolve all questions that might arise in
connection with the implementation of this Agreement in an amicable manner.
All disputes stemming from this
[initials]
Agreement or with regard to its effectiveness that cannot be resolved
amicably shall be resolved, finally and absolutely, in accordance with the
rules of arbitration of the Deutsche Institution fur Schiedsgerichtsbarkeit
[German Arbitration Institute], precluding the jurisdiction of any other
court. The Court of Arbitration may also issue a binding decision
concerning the effectiveness of this arbitration clause. Munich, Germany,
is the seat of the Court of Arbitration.
8.6 Notices and notifications under this Agreement shall be mailed to the
following addresses:
To MDKM:
Mannesmann Demag Xxxxxx-Xxxxxx AG
Attn: Xx. Xxxxx Xxxxxx
Xxxxx-Xxxxxx-Xxxxxxx 0
X - 00000 Xxxxxx
Xxxxxxx Xxxxxxxx of Germany
Fax no.: + 89/00 00 0000
To the Buyer:
ROFIN-SINAR Laser GmbH
Attn: Xx. Xxxxxxx Xxxxx
Berzeliusstrasse 83
D - 00000 Xxxxxxx
Xxxxxxx Xxxxxxxx of Germany
Fax no.: + 40/000 00 000
Fax transmission of notifications, which must be sent in writing under this
Agreement, shall be sufficient.
8.7 The parties to this Agreement shall maintain strict confidentiality
concerning the conclusion and the substance of this Agreement, to the
extent permissible under law. MDKM has noted that the Buyer's parent
company is required
[initials]
to make this Agreement public in accordance with the requirements of U.S.
securities laws. The parties shall issue a mutually agreed upon press
release on May 1, 2000.
8.8 This Agreement contains the following definitions; however, the enumeration
below is not necessarily complete:
"Cash Pooling Deadline" Article 2.2
"CBL GmbH" Preface, item 1
"CBL Group" Preface, item 4
"CBL Subsidiaries" Preface, item 4
"GAAP" Article 3.2
"Buyer" Introduction
"MDKM" Introduction
"MDKM equity stake" Preface, item 1
"Option Agreement" Preface, item 2
"Party" and "Parties" Introduction
"Effective Date" Article 1.1
"Closing Date" Article 1.3
"Affiliates" Article 8.3
"Equity Stake Sold" Article 1.1
"Material Real Property Leases" Article 3.3 para a
"Date of Transfer" Article 1.3
8.9 This Agreement contains the following Appendices; however, the enumeration
below is not necessarily complete:
1 Preface, item 2 (Option Agreement)
2 Preface, item 3 (Branches and Facilities)
3 Article 2.2 (Credit/Debit Balance of Cash Pooling Account
as of December 31, 1999)
[initials]
4 Article 3.1 para b (Encumbrances)
5 Article 3.3 para a (Material Real Property Leases)
6 Article 3.4 (Litigation)
7 Article 3.5 (Intellectual Property Rights)
8 Article 3.6 (Specific Agreements)
9 Article 3.7 para a (Employees)
10 Article 3.8 (Events since January 1, 1999 [sic])
11 Article 4.8 (Knowledge)
12 Article 6.1 (Group or Bank Guaranties, as well as Specific
Transactions)
[initials]
FOR THE PURPOSES OF CERTIFICATION, this document, including all Appendices --
with the exception of the inventories contained in Appendices 2, 2.2, 3.3, 3.5,
3.6, 3.7, 3.8, and 6.1, in regards to which the aforementioned persons waived
their right to have the text read aloud to them and which were submitted to them
for their information and executed by them on each page, as well as Appendix 1,
in regards to which the aforementioned persons waived their right to have the
text read aloud to them and which was submitted to them for review and is
attached hereto solely for purposes of identification (and whose content thus is
not an integral part of this document) -- was read aloud to the aforementioned
persons by me, the Notary Public; this document was confirmed to be correct and
approved by the aforementioned persons, and it was executed by the
aforementioned persons, in their own hand, and by me, the Notary Public, in my
own hand, and I affixed my official seal thereto.
Basel, Switzerland, April 29 (in words: twenty-nine), 2000 (in words: in the
year two thousand)
[signed]
[signed]
[seal] XXXXXX XXXXXXXXX
NOTARY PUBLIC, BASEL [signed]
Xx. Xxxxxx Xxxxxxxxx, Notary Public
Minutes 2000/60
[excise stamps]
Power of Attorney
-----------------
We, the undersigned MANNESMANN DEMAG XXXXXX-XXXXXX AG, headquartered in Munich,
[Federal Republic of Germany], registered with the Commercial Register under
number HRB 12700,
hereby grant power of attorney to
Xx. Xxxxxx Xxxx-Xxxxxxxxxx
Date of birth: Xxxxx 00, 0000
Xxxxxx
Xxxxx citizen
domiciled in: In xxx Xxx 00, XX - 0000 Xxxxxx, [Xxxxxxxxxxx],
and
Xx. Xxxx Xxxxx, lic. iur.
Date of birth: January 8, 1971
Attorney at Law
Swiss citizen
domiciled in: Ob dem Hugliacker 00, XX - 0000 Xxxxxxxxx, [Xxxxxxxxxxx],
specifically, to each of them individually,
to represent us in connection with the conclusion and execution of an
Acquisition and Transfer Agreement between Mannesmann Demag Xxxxxx-Xxxxxx AG and
ROFIN-SINAR Laser GmbH concerning equity stakes in Xxxx Xxxxxx Lasertechnik
GmbH, headquartered in Starnberg, [Germany] (registered with the Commercial
Register of the District Court, Munich, [Germany], under the number HRB 70075).
The attorneys in fact are authorized to conclude all agreements that are
required or suitable in this connection, to consent to all modifications
thereof, as well as to make and receive all statements that are required or
suitable in this connection, irrespective of whether they are made privately, in
writing, or certified by a notary public.
The attorneys in fact are authorized to make and receive all statements related
in any way to the aforementioned matters and to take all additional measures
related thereto. The attorneys in fact are exempt from the restrictions of ss.
181 German Civil Code [Burgerliches Gesetzbuch - BGB]. They are authorized, each
of them individually, to grant substitute powers of attorney (which shall also
be exempt from the restrictions of ss. 181 German Civil Code).
Munich, [Germany], 04/28/00
[signed] [signed]
Xxxxxxx Xxxxxxx Xx. Xxxxxx Xxxx
Board Member Prokurist [Executive with general power of attorney]
Attachment 2
------------
Power of Attorney
-----------------
We, the undersigned ROFIN-SINAR Laser GmbH, headquartered in Hamburg, [Federal
Republic of Germany], registered with the Commercial Register under number HRB
18044,
hereby grant power of attorney to
Xx. Xxxxxx Xxxx-Xxxxxxxxxx
Date of birth: Xxxxx 00, 0000
Xxxxxx
Xxxxx citizen
domiciled in: In xxx Xxx 00, XX - 0000 Xxxxxx, [Xxxxxxxxxxx],
and
Xx. Xxxx Xxxxx, lic. iur.
Date of birth: January 8, 1971
Attorney at Law
Swiss citizen
domiciled in: Ob dem Hugliacker 00, XX - 0000 Xxxxxxxxx, [Xxxxxxxxxxx],
specifically, to each of them individually,
to represent us in connection with the conclusion and execution of an
Acquisition and Transfer Agreement between Mannesmann Demag Xxxxxx-Xxxxxx AG and
ROFIN-SINAR Laser GmbH concerning equity stakes in Xxxx Xxxxxx Lasertechnik
GmbH, headquartered in Starnberg, [Germany] (registered with the Commercial
Register of the District Court, Munich, [Germany], under the number HRB 70075).
The attorneys in fact are authorized to conclude all agreements that are
required or suitable in this connection, to consent to all modifications
thereof, as well as to make and receive all statements that are required or
suitable in this connection, irrespective of whether they are made privately, in
writing, or certified by a notary public.
The attorneys in fact are authorized to make and receive all statements related
in any way to the aforementioned matters and to take all additional measures
related thereto. The attorneys in fact are exempt from the restrictions of ss.
181 German Civil Code [Burgerliches Gesetzbuch - BGB]. They are authorized, each
of them individually, to grant substitute powers of attorney (which shall also
be exempt from the restrictions of ss. 181 German Civil Code).
Munich, [Germany], 04/28/00
[signed] [signed]
Xxxxxxx Xxxxx Xx. Xxxxx Xxxxx
Managing Director Managing Director
