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EXHIBIT 10.1
[TRANSLATION]
AGREEMENT
between
Xxxxxxxx Holding GmbH
seated in Collenberg,
registered in the Commercial Register
of the local court Aschaffenburg
under No. HRB 6031,
represented by the Managing Director
Xx. Xxxxx Xxxxxxxxxxx,
who has sole power of representation
(Hereinafter referred to as 'Xxxxxxxx')
and
Xx. Xxxx Xxxx,
Xxx. Xxxxxxxxx Xxxx,
Xx. Xxxxx Xxxx,
Xx. Xxxxx Xxxx-Xxxxxxx,
Xxx. Xxxxxxxxx Xxxxx
(Hereinafter jointly referred to as the 'Hohe Family'
and individually referred to as
'Member of the Hohe Family' or 'Family Member')
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Preamble
The parties to this Agreement are parties to the Acquisition
Agreement made and entered into (with the participation of
further persons) on 25th May 1995 (hereinafter referred to as the
'Acquisition Agreement') in relation to Xxxxxxxx Hohe GmbH & Co.
KG seated in Collenberg and registered in the Commercial Register
at the local court of Aschaffenburg under number HRA 1546
(hereinafter referred to as the 'Company').
Xxxxxxxx set forth warranty claims against the Hohe Family under
the Acquisition Agreement. The parties disagree on whether and
up to which amount such claims are justified. In view of a
settlement of the differences in opinion the parties hereto agree
to make the following modifications and add the following
supplemental provisions to the Acquisition Agreement,
particularly in regard to the mutually granted call options and
put options. The remaining provisions of the Acquisition
Agreement remain unchanged unless modified in the following.
(1) In derogation of the call option granted to Xxxxxxxx in
Section 1.5 lit. B) subsection (2) and the terms agreed in
this section for a purchase, the parties hereto hereby agree
as follows:
The date of March 31st, 1998 is (due to the change of the
fiscal year) replaced by May 31, 1998 which is the date on
which the exercise of a call option under Section 1.5 lit. B)
subsection 2 can become effective for the first time. The
minimum price of DM 1.5 million fixed in Section 1.5 lit. B)
subsection (2) payable to each Member of the Hohe Family as
consideration for the entire limited partnership interest
held by the Members including al shareholders' accounts and
all earlier payments to the individual Member of the Hohe
Family is replaced by a minimum price of DM 1 million payable
to each member of the Hohe Family, which makes the price
total DM 5 million.
(2) As to the put options granted to the Members of the Hohe
Family in Section 1.5 lit. A) (Put-Option) the parties hereto
agree as follows:
The minimum price of DM 500,000 fixed in Section 1.5 lit. A)
as price payable to each Member of the Hohe Family is
replaced by a minimum price of DM 600,000 if the put option
is exercised to take effect on a date later than May 31,
1999.
(3) In derogation of Section 1.5 lit. D) sentence 1 of the
Acquisition Agreement the transfer of the individual limited
partner interest becomes effective upon the exercise of the
option and the registration of the change in the limited
partnership in the Commercial Register.
(4) In view of a possible increase of taxes (income tax and
church tax) payable by the
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Hohe Family on account of the cause that the Members of the
Hohe Family's are limited partners of the company, the
parties hereto agree as follows:
(a) If the following extraordinary depreciations and
reserves for galvonics in the annual financial statement
of March 31, 1995
- depreciation DM 1,400,000 for galvonics
(Cf. Audit report explanatory narrative Tz 7).
- threatening losses for galvonic orders DM 130,000
(Cf. Audit report explanatory narrative Tz 48).
- reorganization costs for xxxxxxxxx XX 300,000
(Cf. Audit report explanatory narrative Tz 48 -
part of the amount of DM 2,143,000)
should qualify as inappropriate and therefore, be
reversed and lead to an increase of taxes payable by the
Hohe Family, the Members of the Hohe Family are entitled
to draw Company funds for this increase without any
effect on the purchase price upon the exercise of the
put options or call options; this provision also applies
in case an eventual reverse is effected for fiscal years
other than 1994/95. If a Member of the Hohe Family is
no longer shareholder at the point of time when the tax
increase accrues and falls due, the option price is
subsequently increased by the required amount; the
increase of the option price falls due as son as the
accrual and maturity of the tax increase is proven to
Xxxxxxxx. Article 13 (2) lit. A) of the Partnership
Agreement applies mutatis mutandis to the computation
and evidence of such tax increases. The amounts in
question are limited to a total of DM 500,000 and to DM
100,000 for each Member of the Hohe Family.
(b) The foregoing paragraph a) applies mutatis mutandis to
possible tax increases payable by the Members of the
Hohe Family in consequence of the tax audits for the
years 1988/89 to 1991/92 provided that only 50% of such
tax increases are taken into account and on condition
that it is proven to Xxxxxxxx that the losses carried
forward for tax purposes for each Member of the Hohe
Family as per 31st March 1995 come to at least DM
500,000.
(c) The parties hereto agree that it follows from the
foregoing reference to 13 (2) a) of the Partnership
Agreement that tax increases under this paragraph 4 can
only be taken into account as far as increases in
profits cannot be compensated by losses carried forward
resulting from interest held in the Company.
(5) The Hohe Family assures to have paid in the DM 500,000
liability amount for each
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Member of the Hohe Family (except for the amount paid by Xxxx
Xxxx) and that no repayments have been or will made before
the registration of Xxxxxxxx in the commercial Register upon
the exercise of the options. Furthermore, the Hohe Family
guarantees that no property takeover liability pursuant to
419 BGB will be triggered off for the Members of the Hohe
Family by the sale effected by the exercise of the options.
(6) The Members of the Hohe Family signed the Powers of Attorney
attested by a public notary and attached as Annex 1 to this
agreement. The Powers of Attorney authorize Xxxxxxxx Hohe
Verwaltungs-GmbH seated in Collenberg and registered in the
Commercial Register of the local court of Aschaffenburg under
No. HRB 4438, to apply for registration of the change in the
limited partnership in the Commercial Register.
(7) The Hohe Family is released from any and all warranty
liabilities under the Acquisition Agreement.
(8) The non-competition clause 4.2 of the Acquisition Agreement
is relaxed as follows for the period following the withdrawal
from the Company. Xxxxx Xxxx and Xx. Xxxxx Xxxx-Xxxxxxx
shall be entitled to become active in business areas of the
Company other than the manufacture of car mirrors in the
event that they do now longer hold an interest in the Company
and that their employment with the Company is terminated by
the Company and has effectively ended.
(9) All other provisions of the Acquisition Agreement remain
unchanged and in full force and effect unless already
implemented.
Collenberg, (Date) March 20, 1998
/s/Xxxxx Xxxxxxxxxxx
Xxxxxxxx Holding GmbH /s/Xxxx Xxxx
/s/Xxxxxxxxx Xxxx /s/Xx. Xxxxx Xxxx-Xxxxxxx
/s/Xxxxx Xxxx /s/Xxxxxxxxx Xxxxx
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Read and approved:
Collenberg March 23, 1998 /s/Xxxxx Xxxxxxxxxxx
Place/Date Xxxxxxxx Corporation, Michigan
/s/Xxxx Xxxxx
Xxxxxxxxxx March 23, 1998 /s/Xxxxx Xxxxxx
Place/Date Xxxxxxxx Hohe GmbH & Co. KG
/s/Xxxx Xxxxx
Collengerg March 23, 1998 /s/Xxxxx Xxxxxx
Place/Date Xxxxxxxx Hohe Verwaltungs-GmbH
