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No. 236 of the Roll of Deeds for 1999 Uncertified Copy
dated December 17, 1999 of the notary ----------------
Xx. Xxxxxx Xxxxxx, Basel
NOTARIAL DEED
PURCHASE AND TRANSFER AGREEMENT
Before me, the undersigned public notary
XX. XXXXXX XXXXXX
at Basel / Switzerland appeared today:
1. Attorney at law Mr. Xxxxxxxxxxxx Xxxxxx, born June 1, 1957, German
citizen, resident Am Wachholderberg 0X, X-00000 Xxxxxxxxxxxx,
business address Xxxxxxxxxxxxxxx 00, X-00000 Xxxxxxxxx xx Xxxx,
identified by submission of his official identity card,
acting in the name of
a) Diogenes Dreizehnte Vermoegensverwaltungs GmbH,
Xxxxxxxxxxxxxxx 00, X-00000 Xxxxxxxxx am Main,
registered with the commercial register of Frankfurt under
HRB No. 45203, by virtue of the power of attorney dated
December 10, 1999, submitted in the original and attached
hereto in a notarized copy as annex A, including the
certificate of power of representation,
-hereinafter referred to as "SELLER" -
b) Celanese AG, Xxxxxxxxxxxxxxx 00, X-00000 Xxxxxxxxx am
Main, registered with the commercial register of Frankfurt
under HRB No. 42283, by virtue of the power of attorney
dated December 10, 1999, submitted in the origi-
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nal and attached hereto in a notarized copy as annex B,
including the certificate of power of representation,
-hereinafter referred to as "CELANESE" -
2. Attorney at law Dr. xxx. Xxxxxxx Xxxxxx, born April 10, 1964, German
citizen, resident Schloss-Xxxxxxxxxxxxxxx 00, X-00000 Xxxxxxxxxx,
business address c/o BASF Aktiengesellschaft, Gebaeude D-100,
D-67056 Ludwigshafen, identified by submission of his official
identity card,
acting in the name of
BASF Aktiengesellschaft, Xxxx-Xxxxx-Xxxxxxx 00, X-00000
Xxxxxxxxxxxx, registered with the commercial register of
Ludwigshafen under HRB No. 3000, by virtue of the power of
attorney dated December 14, 1999, submitted in the original
and attached hereto as annex C,
- hereinafter referred to as "BUYER" -.
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Before the beginning of the following notarization, the notary explained the
prohibition of participation pursuant to the Law of Notaries of the City of
Basel (baselstaedtisches Notariatsrecht) (EG/ZGB Section 233 subsection 1 no. 4)
and pursuant to the German Authentication Act (Beurkundungsgesetz) (Section 3
subsection 1 no. 7). He asked the persons appearing whether he or a person with
whom he is associated in order to jointly exercise his profession or with whom
he shares his business premises are or were already active in the matter within
the meaning of these provisions. The persons appearing and the notary stated
that this is not the case.
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Thereupon the persons appearing, acting as indicated, asked for notarization of
the following
PURCHASE AND TRANSFER AGREEMENT
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PURCHASE AND TRANSFER AGREEMENT
between
Diogenes Dreizehnte Vermoegensverwaltungs GmbH,
Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx am Main,
registered with the commercial register of Frankfurt under HRB No. 45203
- hereinafter referred to as ,,SELLER" -
Celanese AG,
Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx am Main,
registered with the commercial register of Frankfurt under HRB No. 42283
- hereinafter referred to as "CELANESE" -
BASF Aktiengesellschaft,
Xxxx-Xxxxx-Xxxxxxx 00, 00000 Xxxxxxxxxxxx,
registered with the commercial register of Ludwigshafen under HRB No. 3000
- hereinafter referred to as "BUYER" -
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PREAMBLE
1. The Seller, the Buyer and BASF Nederland B.V. domiciled in Arnheim, the
Netherlands ("BASF B.V."), are the only shareholders of Targor GmbH
(hereinafter referred to as "Targor"), registered with the commercial
register of Mainz under HRB No. 6473, with a nominal capital of DM
19,994,000.00. Thereof, the Seller holds several shares in the aggregate
nominal value of DM 9,997,000.00, the Buyer holds several shares in the
aggregate nominal value of DM 9,996,000.00 and BASF B.V. holds one share in
the nominal value of DM 1,000.00. On December 16, 1998, the general
shareholders' meeting of Xxxxxx resolved an increase in the share capital
and admitted Buyer and Hoechst AG, Frankfurt am Main (hereinafter referred
to as "Hoechst AG"), to subscribe a share of DM 1,000.00 each (notarial
deed No. 2831/1887 S of the notary JR Xxxx Xxxx Xxxxxxxxxxx in Mainz). This
capital increase has not yet been registered with the commercial register
yet.
The nominal capital in the amount of DM 19,994,000.00 has been fully paid.
2. Hoechst AG and the Buyer jointly incorporated Targor on the basis of a
joint venture agreement dated June 12, 1997 (deed No. A.Prot 1997/35 of the
notary Xx. Xxxxxx Xxxxxx, Basel) (the "JOINT VENTURE AGREEMENT"). Hoechst
AG has transferred its shares to the Seller, including the future share
resulting from the capital increase described under subsection 1 above,
within as part of the spin-off of its base chemicals, acetates and
technical polymer businesses. The spin-off became effective with the
registration with the commercial register of Hoechst AG on October 22,
1999.
3. On July 27, 1999 the Buyer, Hoechst AG, the Seller and Celanese (at that
time under the firm name "Diogenes Erste Vermoegensverwaltungs AG")
consented to the transfer of the share of Hoechst AG in Targor GmbH to the
Seller and to the subsequent spin-off of the share in the Seller to
Celanese. The Buyer simultaneously declared its consent to Hoechst AG
withdrawing from the Joint Venture Agreement and transferring all its
rights and duties arising from the Joint
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Venture Agreement to Celanese with exonerating effect as a result of the
spin-off. Furthermore, the Seller acceded to the Joint Venture Agreement by
virtue of the agreement concluded on July 27, 1999. (see notarial deed
X.Xxxx 1999/98 of the notary Xx. Xxxxxx Xxxxxx, Basel).
4. Pursuant to the Joint Venture Agreement, the Buyer had a call-option and
the Seller had a put-option, both exercisable for the first time as of
January 1, 2001. In lieu of exercising these options, the parties have
agreed that the Seller shall transfer its shares described under subsection
1 in the aggregate amount of DM 9,997,000.00 as well as its future share in
the amount of DM 1,000.00 to the Buyer already now.
Therefore, the parties agree as follows:
SECTION 1
PURCHASE AND TRANSFER OF SHARES
1.1. The Seller hereby sells and, subject to the conditions precedent set forth
in Section 1.2., transfers to the Buyer the shares described in the
Preamble under subsection 1 in the amounts of DM 9,997,000.00 and DM
1,000.00 (the "SOLD SHARES"). The sale and transfer includes all rights and
duties attached to the shares, including the entitlement to all profits
retained.
1.2 The transfer of the Sold Shares shall become effective when the following
conditions have been satisfied (conditions precedent):
1.2.1 The purchase price pursuant to Section 2.1 has been credited
irrevocably and unconditionally to the Seller's account pursuant to
Section 2.2 and
1.2.2 the capital increase mentioned in subsection 1 of the Preamble has
been registered with the commercial register.
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The condition precedent in Section 1.2.2 shall only apply to the
transfer of the future share in the amount of DM 1,000.00. The
parties shall notify the undersigned notary of the fulfillment of the
conditions precedent without undue delay, providing a copy to the
other party. The notary will notify the parties when all conditions
precedent are met and will then apply for registration of the
transfer of the Sold Shares in Targor pursuant to Section 16 German
Limited Liability Companies Act (GmbH-Gesetz).
1.3 The parties declare that the sale and transfer of the Sold Shares is
carried out in derogation of Sections 21 and 22 of the Joint Venture
Agreement. The parties waive any rights ensuing from these
provisions. In particular, Seller and Buyer acknowledge the purchase
price laid down in this contract as binding and final and waive all
and any rights which might result from Section 22 of the Joint
Venture Agreement in connection with annex 22 thereto.
SECTION 2
PURCHASE PRICE
2.1 The purchase price for the Sold Shares is DM 520 Mio. (in words:
Deutsche Mark five hundred and twenty million).
2.2 The purchase price shall be due for payment on December 20, 1999.
The purchase price shall be paid into the following account of the
Seller:
Account No. 07 709 948
Dresdner Bank AG Frankfurt/Main
BLZ 500 800 00
2.3 The purchase price shall be paid without deductions for bank or other
processing fees. Payment of the purchase price is deemed to be
performed when the pur-
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xxxxx xxxxx has been credited unconditionally and irrevocably to the
account of the Seller.
2.4 The Buyer shall have no right of retention regarding the purchase
price claim. The Buyer may set off claims against the purchase price
claim only to the extent acknowledged by the Seller or established by
final and non-appealable court judgement.
SECTION 3
REPRESENTATIONS AND WARRANTIES BY THE SELLER
3.1 The Seller represents and warrants that it is the sole and
unrestricted owner of the Sold Shares at the time of the transfer and
that they are neither charged with any encumbrances or other rights
which could be asserted by third parties.
3.2 The Seller accepts no further representations or warranties with
regard to the Sold Shares or to the business of Xxxxxx. Any further
claims by the Buyer of whatever nature resulting from the sale of the
Sold Shares, whether for a reduction of the purchase price
(Herabsetzung des Kaufpreises), rescission (Wandelung) or
cancellation of the contract (Ruecktritt), damages or other legal
consequences, and no matter on what basis (including breach of
precontractual duties (culpa in contrahendo) and voidability
(Anfechtbarkeit)), shall be excluded. The provisions in Section 5 of
this contract shall remain unaffected by this.
3.3 Claims for wilful misconduct of the Seller shall not be excluded or
restricted by the provisions of this contract.
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SECTION 4
MEMBERS OF THE SHAREHOLDERS' COMMITTEE (GESELLSCHAFTERAUSSCHUSS)
The Seller shall ensure that the members of the shareholders' committee of
Targor that are appointed by the Seller shall lay down their offices as member
of the shareholders' committee with effect from the day of effectiveness of the
transfer of the Sold Shares.
SECTION 5
SURVIVING OBLIGATIONS UNDER THE JOINT VENTURE AGREEMENT
5.1 The parties agree that the Joint Venture Agreement terminates with
the effectiveness of the transfer of the Sold Shares, with the
exception of Sections 7 to 9, 19.1 and 24 of the Joint Venture
Agreement.
5.2 With regard to the surviving Sections 7 to 9, 19.1 and 24 of the
Joint Venture Agreement, the parties confirm and agree as follows:
5.2.1 Claims under Sections 8.1, 8.2, 8.3, 8.4, 8.5 and 8.7 of the
Joint Venture Agreement are time-barred.
5.2.2 The Buyer confirms that up to now, it has not become aware of
any claims under Section 8 of the Joint Venture Agreement
against the Seller or Celanese. To the extent that such claims
have come into existence before the conclusion of this
agreement without the Buyer having knowledge thereof due to
gross negligence, the Buyer waives any such claims. Knowledge
within the meaning of this provision shall be determined by the
knowledge of both managing directors of Targor (and not only
one of them).
5.2.3 Beyond the provisions in Section 9.4 of the Joint Venture
Agreement the Buyer undertakes to notify Celanese without undue
delay of the coming into existence of a claim under the
provisions of the Joint Venture Agreement which are still in
force, and to inform Celanese without undue delay and in a
comprehensive manner as well as to keep it up-to-date about all
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circumstances that could give rise to such claim against the
Seller or Celanese. The Buyer shall grant Celanese the
opportunity to participate in all meetings and negotiations
relating thereto. Furthermore, the Buyer shall ensure that
Celanese will have full access to all files, documents and
information of Targor and its holding companies (as defined in
the Joint Venture Agreement) that could be useful in connection
with the defense against possible claims by the Buyer against
the Seller or Celanese under this contract or under the Joint
Venture Agreement, or that are asked for upon reasonable grounds
upon request of Celanese.
Moreover, in case of liability pursuant to Section 7 of the Joint
Venture Agreement, the Buyer shall ensure that Celanese gains
access to all relevant sites and is able to carry out
investigations at its own costs. The Buyer further undertakes to
provide Celanese with copies of all pertinent materials.
Liability pursuant to Section 8.6 of the Joint Venture Agreement
shall also apply to the extent that loss carry forwards are
reduced as a result of tax audits of the accounts which relate to
the period before the transfer of the Sold Shares becomes
effective. If Xxxxxx receives reimbursement of taxes as a result
of a tax audit, even if such reimbursement merely leads to an
increase in the loss carry forwards, shall reduce the Seller's
obligation to pay compensation. The compensation payment comes
into existence once Targor, due to a tax audit surplus, is
actually obliged to effect the tax payment.
In case of tax audits of the accounts which relate to a period
for which the Seller is liable under the Joint Venture Agreement
or this agreement, the Buyer shall grant the Seller the
opportunity to participate in all relevant tax audit activities
(Pruefungshandlungen). In particular, the Seller shall be
entitled to submit proposals for taking appropriate legal action.
The right of final decision remains with Xxxxxx. This right of
participation shall, however, be subject to the consent of a new
shareholder of the
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Targor group. The obligation to pay compensation shall arise only
if the Seller consents to the course of action taken by Xxxxxx or
if it would not have been entitled to deny such consent upon
reasonable assessment of the factual and legal position.
The Buyer shall ensure that Xxxxxx will support the Buyer in
fulfilling the aforementioned duties.
5.3 The Buyer shall ensure that Xxxxxx will fulfill the duties resulting
from Section 19.1 of the Joint Venture Agreement.
SECTION 6
CONTINUING OBLIGATIONS BETWEEN TARGOR AND CELANESE
6.1 After the transfer of the Sold Shares pursuant to Section 1.2 has
become effective, the agreements listed in Annex 1 which have been
concluded in connection with the Joint Venture Agreement (the
"IMPLEMENTATION AGREEMENTS") shall continue to apply between Targor
and Celanese or its affiliates.
6.2 In the context of the spin-off described in section 2 of the preamble
the parties contracting with Targor in the Implementation Agreements
have changed. The Buyer consents to the assumption of the rights and
obligation resulting from the Implementation Agreements by the
respective companies mentioned in Annex 1 and will ensure that Xxxxxx
also consents thereto.
6.3 As of the date of effectiveness of the transfer of the Sold Shares,
there are no further legal relationships between the Buyer and/ or
Targor on the one hand and Celanese and/ or the Seller on the other
hand with regard to the Seller's share in Targor which is transferred
pursuant to this contract, other than the legal relationships set
forth in Sections 5 and 6 of this contract.
6.4 For those employees heretofore insured in the pension fund
(Pensionskasse der Mitarbeiter der Hoechst -Gruppe VVaG), Xxxxxx shall
have the opportunity to carry on the full memberships within the
framework of the articles of the pension
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fund as amended. If and to the extent Xxxxxx decides to terminate the
pension plan by using the pension fund, both the vested rights and the
corresponding cover funds shall remain with the pension fund.
SECTION 7
NOTICES AND DECLARATIONS
7.1 Notices and declarations to the Buyer in connection with this
agreement shall be deemed to have been made validly if made by
registered mail or courier to the following address or to any other
address communicated in writing by the Buyer to Celanese:
BASF Aktiengesellschaft
- Zentralabteilung Recht-
Herrn Dr. Winter
Xxxx-Xxxxx-Xxxxxxx 00
00000 Xxxxxxxxxxxx.
7.2 Notices and declarations to the Seller and/ or Celanese in connection
with this agreement shall be deemed to have been made validly if made
by registered mail or courier to the following address or to any other
address communicated in writing by the Seller or Celanese to the
Buyer; a notification of Celanese shall be deemed to represent a
notification of the Seller as well:
Celanese AG
- Rechtsabteilung -
Herrn Xx. Xxxx Xxxxxxxxx
Xxxxxxxxxxxxxxx 00
65926 Frankfurt am Main.
SECTION 8
MISCELLANEOUS
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8.1 To the extent that the Buyer has undertaken in this agreement to
ensure that Xxxxxx behaves in a certain manner, this obligation of the
Buyer shall equally apply with regard to any legal successor of
Xxxxxx.
8.2 Changes and amendments to this contract, including this very
provision, shall be valid only if made in writing.
8.3 Any taxes and other public levies arising in connection with this
agreement, as well as the costs of the notarization of this agreement,
shall be borne by the Buyer and the Seller at one half each up to an
aggregate amount of DM 500,000.--; the Buyer shall bear any exceeding
amounts. The foregoing provision shall not apply to taxes to be borne
by the Seller for any capital gain.
8.4 Should any provision of this agreement be invalid or unenforceable,
the parties shall endeavour to agree upon a valid provision which most
effectively serves the intended economic purpose in order to replace
the invalid or unenforceable provision.
8.5 Rights and duties under this agreement may not be transferred to a
third party in whole or in part without prior consent of all other
parties.
SECTION 9
ARBITRATION
For all disputes arising under this Agreement, with regard to its validity or in
connection with this agreement Section 24 of the Joint Venture Agreement applies
mutatis mutandis.
The foregoing Purchase and Transfer Agreement together with Annex 1 was read by
me, the notary, to the persons appearing, was approved by the persons appearing
and was then personally signed by them and by me, the notary, affixing my seal
of office.
Basel, December 17 (seventeen) 1999 (nineteen hundred and ninety nine)
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[signatures]
[seal of office]
A.Prot. 1999/236
[fee stamps]
The Registrant hereby represents that the above English translation is a
fair and accurate translation of the Targor Purchase and Transfer Agreement
dated as of December 17, 1999 by and between Diogenes Dreizehnte
Vermoegensverwaltungs GmbH, Celanese AG and BASF Aktiengesellschaft.
Celanese AG
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Xx. Xxxxxxx Xxxxxxxx
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ANNEXES A, B AND C
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ANNEX A
POWER OF ATTORNEY
The undersigned Diogenes Dreizehnte Vermoegensverwaltungs GmbH, Frankfurt am
Main, hereby authorizes
Xx. Xxxxxx Xxxxxxxx
Xx. Xxxx Xxxxxxxxx
Mr. Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxxxx Xxxxxxx
Xx. Xxxx Xxxxxxxxx
joint business address Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx
xx Xxxx
each of them acting alone, to conclude a purchase and transfer agreement in the
name of Diogenes Dreizehnte Vermoegensverwaltungs GmbH with BASF AG,
Ludwigshafen/Rhein and with Celanese AG, Frankfurt am Main. In this contract,
the shares held by Diogenes Dreizehnte Vermoegensverwaltungs GmbH in Targor
GmbH, Mainz, shall be sold and transferred from Diogenes Dreizehnte
Vermoegensverwaltungs GmbH to BASF AG.
The proxies, each of them acting alone, shall be authorized to make and accept
all statements as well as to take all actions which they consider necessary or
appropriate in the aforementioned context.
The proxies, each of them acting alone, shall be relieved from the restrictions
set forth in Section 181 German Civil Code (BGB) and shall be authorized to
grant sub-powers of attorney with equal relief from the restrictions set forth
in Section 181 BGB.
This power of attorney is governed by the law of the Federal Republic of
Germany.
Frankfurt am Main, December 10, 1999
Diogenes Dreizehnte Vermoegensverwaltungs GmbH
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[signature] [signature]
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ANNEX B
POWER OF ATTORNEY
The undersigned Celanese AG, Frankfurt am Main, hereby authorizes
Xx. Xxxxxx Xxxxxxxx
Xx. Xxxx Xxxxxxxxx
Mr. Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxxxx Xxxxxxx
Xx. Xxxx Xxxxxxxxx
joint business address Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx
xx Xxxx
each of them acting alone, to conclude a purchase and transfer agreement in the
name of Celanese AG with BASF AG, Ludwigshafen/Rhein and with Diogenes
Dreizehnte Vermoegensverwaltungs GmbH, Frankfurt am Main. In this contract, the
shares held by Diogenes Dreizehnte Vermoegensverwaltungs GmbH in Targor GmbH,
Mainz, shall be sold and transferred from Diogenes Dreizehnte
Vermoegensverwaltungs GmbH to BASF AG.
The proxies, each of them acting alone, shall be authorized to make and accept
all statements as well as to take all actions which they consider necessary or
appropriate in the aforementioned context.
The proxies, each of them acting alone, shall be relieved from the restrictions
set forth in Section 181 German Civil Code (BGB) and shall be authorized to
grant sub-powers of attorney with equal relief from the restrictions set forth
in Section 181 BGB.
This power of attorney is governed by the law of the Federal Republic of
Germany.
Frankfurt am Main, December 10, 1999
CELANESE AG
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[signature] [signature]
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[BASF stationary]
ANNEX C
POWER OF ATTORNEY
We hereby authorize
Dr. Xxxxxxx Xxxxxx, born April 10, 1964, German citizen, identity card
No. 6094335268, resident 69118 Heidelberg, Schloss Wolfsbrunnenweg
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to conclude the contract in the name of BASF Aktiengesellschaft with Diogenes
Dreizehnte Vermoegensverwaltungs GmbH, Frankfurt am Main ("Diogenes") and with
Celanese AG, Frankfurt am Main, in which, among other things, all shares held by
Xxxxxxxx in Targor GmbH, Mainz, shall be transferred to BASF Aktiengesellschaft.
The proxy is authorized to make and accept all statements as well as to take all
actions which he considers necessary or appropriate in the aforementioned
context.
Ludwigshafen, December 14, 1999
BASF Aktiengesellschaft
[signature] [signature]
Goldmann xxx Xxxx
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No. 4393 of the Roll of Deeds for 1999
I hereby certify that the foregoing signatures which have been subscribed
personally in my presence by
1. Xx. Xxxxx Xxxx X o l d m a n n , lawyer,
in Ludwigshafen/ Rhein
2. Xx. Xxxxxxxx xxx X e y l , lawyer, in Ludwigshafen/ Rhein
acting for BASF AKTIENGESELLSCHAFT in Ludwigshafen/ Rhein
are genuine.
Xx. Xxxxxxxx and Xx. xxx Xxxx are personally known to me
I further certify that the commercial register maintained by the local court in
Ludwigshafen/ Rhein -which I have inspected today- shows under docket number HR
B 3000 that Xx. Xxxxxxxx and Xx. xxx Xxxx are authorized to represent BASF
AKTIENGESELLSCHAFT domiciled in Ludwigshafen/ Rhein in their capacity as
"Prokurists" by acting jointly.
Ludwigshafen/ Rhein, December 14, 1999
Notary
Maximum value
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ANNEX 1
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ANNEX 1
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NAME OF THE CONTRACT PARTIES
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Contribution Agreement HOECHST Celanese AG - Targor GmbH
(Annex 5.1.2 to the Joint Venture Agreement)
between BASF AG and Hoechst AG dated
June 12, 1997 ("Joint Venture Agreement")
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Technology Agreement HOECHST Celanese AG - Targor GmbH
(Annex 6.4 to the Joint Venture Agreement)
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Trademark License Agreement HOECHST Celanese AG - Targor GmbH
(Annex 6.5 to the Joint Venture Agreement)
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Personnel Agreement HOECHST Celanese AG - Targor GmbH
(Annex 6.7 to the Joint Venture Agreement)
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Propylene Supply Contract HOECHST CPO Celanese AG & Co. Procurement
(Annex 19.4 to the Joint Venture Agreement) Olefin KG (before the spin-off of Celanese
AG from Hoechst AG: HPO Hoechst
Aktiengesellschaft & Co. Procurement
Olefin KG) - Targor GmbH
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