XX-00.XX
2
exhibit1.htm
XX-00.XX
SHARE PURCHASE AGREEMENT
by and between
Polaris Industries Inc.,
Polaris Austria GmbH
and
CROSS Industries AG,
Eternit Holding GmbH
C/M/S/ Xxxxx-Rohrwig Xxxxx
Rechtsanwälte GmbH
1
This SHARE PURCHASE AGREEMENT (the “Agreement”) has been entered into as of December 22, 2006
(the “Signing Date”) by and between:
| (1) | | Polaris Industries Inc., a corporation duly established and validly existing under the laws
of Minnesota, having its registered office at 0000 Xxxxxxx 00, Xxxxxx, XX 00000. (“Polaris”); |
| (2) | | Polaris Austria GmbH, formerly Polaris Beteiligungsverwaltungs GmbH, a limited liability
company duly established and validly existing under Austrian law, registered with the Company
Register of Austria under the registration number FN 264931f, having its registered office at
Xxxxxxxxxxxxxxxx 0, X-0000 Xxxxxx, Xxxxxxx, as seller (“PA” or the “Seller”); |
| (3) | | Cross Industries AG, a joint stock company duly established and validly existing under
Austrian law, registered with the Company Register of Austria under the registration number FN
261823i, having its registered office at Xxxxxxxxxxxx 0, X-0000 Xxxx, Xxxxxxx, (“CI”); and |
| (4) | | Cross Automotive GmbH, presently registered as Eternit Holding GmbH, a limited liability
company duly established and validly existing under Austrian law, registered with the Company
Register of Austria under the registration number FN 177514a, having its registered office at
Xxxxxxxxxxxxx 00, X-0000 Xxxxxxxxxxx, Xxxxxxx, as buyer (“CA”); |
| | | each of them a “Party” and, collectively, the “Parties”. |
WHEREAS:
| (A) | | KTM Power Sports AG (“KTM”) is an Austrian joint stock company duly established and validly
existing under Austrian law registered with the Company Register of Austria under the
registration number FN 107673v, having its registered office at Xxxxxxxxxxxxx 0/XXX XXX,
X-0000 Xxxx, Xxxxxxx. The nominal share capital of KTM amounts to EUR 6,892,643 (Euro six
million eight hundred thousand ninety-two six hundred forty-three) and is fully paid in. The
shares of KTM are listed at the Vienna Stock Exchange and traded on the regulated market
(geregelter Freiverkehr) thereof. |
| (B) | | Polaris Austria GmbH is the sole legal owner of 1,723,161 (one million seven hundred
twenty-three thousand one hundred sixty-one) ordinary voting shares (Stammaktien) in KTM, each
share with a nominal value of EUR 1 (Euro one), representing 25% plus one share of the share
capital of KTM (the “PA Shares”). |
| (C) | | The Buyer wishes to purchase 1,378,561 (one million three hundred seventy eight thousand one
hundred sixty one) of the PA Shares, representing approx. 20% of the share capital of KTM,
each with dividend rights for the financial year 2006/2007 (the “Purchased Shares”), from PA
and PA wishes to sell the Purchased Shares to the Buyer. |
DEFINITIONS:
Capitalized terms not otherwise defined herein shall have the meaning as defined in the Call Option
Agreement. The following expressions shall have the following meaning unless expressly stated
otherwise herein:
| | | |
| “Acquisition”
| | shall have the meaning ascribed to such term
in Clause 1.1. |
|
| | |
| “Agreement”
| | shall mean this share purchase agreement. |
|
| | |
| “Business Day”
| | shall mean a day, when banks are open for
business in both Austria and New York, New
York. |
|
| | |
| “Buyer”
| | shall mean either CA or CI, whoever first
submits a notification regarding Closing I
pursuant to Clause 2.1. In the event that no
such notice is submitted by 15 March 2007,
CI shall be deemed the Buyer. |
|
| | |
| “Buyer’s Warranties”
| | shall have the meaning ascribed to such term
in Clause 4. |
|
| | |
| “CA”
| | shall have the meaning ascribed to such term
in the preamble. |
|
| | |
| “Call Option Agreement”
| | shall mean the Call Option Agreement entered
into between the Parties dated 18 July 2005. |
|
| | |
| “CI”
| | shall have the meaning ascribed to such term
in the preamble. |
|
| | |
| “Closing I“
| | shall have the meaning ascribed to such term
in Clause 2.1. |
|
| | |
| “Closing II”
| | shall have the meaning ascribed to such term
in Clause 2.5. |
|
| | |
| “Closing Actions I”
| | shall have the meaning ascribed to such term
in Clause 2.2. |
|
| | |
| “Closing Actions II”
| | shall have the meaning ascribed to such term
in Clause 2.6. |
|
| | |
| “Closing Date I”
| | shall have the meaning ascribed to such term
in Clause 2.1. |
|
| | |
| “Closing Date II”
| | shall have the meaning ascribed to such term
in Clause 2.5. |
|
| | |
| “Communications”
| | shall have the meaning ascribed to such term
in Clause 7.4. |
|
| | |
| “Failed Closing I”
| | shall have the meaning ascribed to such term
in Clause 2.4. |
|
| | |
| “Failed Closing II”
| | shall have the meaning ascribed to such term
in Clause 2.8. |
|
| | |
| “KTM”
| | shall mean KTM Power Sports AG, an Austrian
joint-stock company duly established and
validly existing under Austrian law
registered with the Company Register of
Austria under the registration number FN
107673v, having its registered office at
Xxxxxxxxxxxx 0/XXX XXX, X-0000 Xxxx,
Xxxxxxx. |
|
| | |
| “PA”
| | shall mean the Seller. |
|
| | |
| “PA Shares”
| | shall have the meaning ascribed to such term
in Clause (B) of the preamble. |
|
| | |
| “Purchase Price”
| | shall have the meaning ascribed to such term
in Clause 1.2. |
|
| | |
| “Purchase Price I”
| | shall have the meaning ascribed to such term
in Clause 1.2. |
|
| | |
| “Purchase Price II”
| | shall have the meaning ascribed to such term
in Clause 1.2. |
|
| | |
| “Purchased Shares”
| | shall have the meaning described in Clause
(C) of the preamble. |
|
| | |
| “Purchased Shares I”
| | shall have the meaning ascribed to such term
in Clause 1.2. |
|
| | |
| “Purchased Shares II”
| | have the meaning ascribed to such term in
Clause 1.2. |
|
| | |
| “Repeated Closing I”
| | shall have the meaning ascribed to such term
in Clause 2.4. |
|
| | |
| “Seller”
| | shall have the meaning ascribed to it in the
preamble. |
|
| | |
| “Seller’s Account”
| | shall mean such bank account of the Seller
as notified to the Buyer at least three
Business Days prior to Closing I. |
|
| | |
| “Seller’s Warranties”
| | shall have the meaning ascribed to such term
in Clause 3. |
|
| | |
| “Share Account”
| | shall mean the share account of the Buyer as
notified to the Seller in the notice
pursuant to Clause 2.1 or Clause 2.5,
respectively. |
|
| | |
| “Signing Date”
| | shall have the meaning ascribed to such term
in the preamble. |
|
| | |
| “Successful Closing I”
| | shall have the meaning ascribed to such term
in Clause 2.3. |
|
| | |
| “Successful Closing II”
| | shall have the meaning ascribed to such term
in Clause 2.7. |
|
| | |
2
NOW THEREFORE, it is agreed as follows:
| 1 | | PURCHASE AND SALE OF THE SHARES |
| 1.1 | | Sale and Purchase. Subject to the terms and conditions of this Agreement and for the
consideration designated in Clause 1.2, the Buyer agrees to purchase from the Seller and the
Seller agrees to sell and transfer to the Buyer the Purchased Shares and all rights, interests
and benefits arising in respect thereof (the “Acquisition”). |
| 1.2 | | Purchase Price. The purchase price for 689,281 (six hundred eighty nine thousand two hundred
eighty one) of the Purchased Shares (the “Purchased Shares I”) shall be EUR 29,253,085.64
(Euro twenty nine million two hundred fifty three thousand eighty five and Cents sixty four)
(the “Purchase Price I”) and the purchase price for 689,280 (six hundred eighty nine thousand
two hundred and eighty) of the Purchased Shares (the “Purchased Shares II”) shall be EUR
29,253,043.20 (Euro twenty nine million two hundred fifty three thousand forty three and Cents
twenty) (the “Purchase Price II”). The total purchase price for the Purchased Shares shall
thus be EUR 58,506,128.84 (Euro fifty eight million five hundred six thousand one hundred
twenty eight and Cents eighty four) (the “Purchase Price”). |
| 1.3 | | Purchase Price Payment. The payment of the Purchase Price I shall be made pursuant to Clause
2.2 and the payment of the Purchase Price II shall be made pursuant to Clause 2.6. Upon
completion of all Closing Actions I, all rights and obligations connected with the Purchased
Shares I shall pass to the Buyer and upon completion of all Closing Actions II, all rights and
obligations connected with the Purchased Shares II shall pass to the Buyer. |
| 2.1 | | Closing Date I. CA or CI, as the case may be, shall identify itself as Buyer and shall
notify the Seller of the date for the Closing I in respect of the Purchased Shares I (the
“Closing Date I”), which shall be a Business Day (i) not earlier than the fifth Business Day
after receipt of such notice by the Seller, and (ii) in no event later than 15 March 2007. The
Closing I and the Closing Actions I shall take place on the Closing Date I commencing at 10
a.m. CET (the “Closing I”). |
| 2.2 | | Actions at Closing I. At Closing I, the following actions shall be taken (the “Closing
Actions I”) to implement a delivery against payment transaction
(Lieferung-gegen-Zahlung-Geschäft) in the DS.A-System operated by Oesterreichische
Kontrollbank AG (außerbörsliche Wertpapierabwicklung): |
| | 2.2.1 | | The Buyer shall irrevocably instruct Deutsche Bank AG, Frankfurt am Main, to
transfer the Purchase Price I to the Seller’s Account. |
| | 2.2.2 | | The Seller shall irrevocably instruct UBS AG, Zurich, to transfer the
Purchased Shares I to the Share Account; |
| | 2.2.3 | | The Seller shall submit to Buyer’s counsel a written confirmation of
Deutsche Bank AG, Frankfurt am Main, that the Purchased Shares I have been credited to
the Share Account. |
| | 2.2.4 | | The Buyer shall submit to Seller’s counsel a written confirmation of UBS AG,
Zurich, that the Purchase Price I has been credited to the Seller’s Account. |
| 2.3 | | Successful Closing I. The Closing I shall be deemed completed, if each and all Closing
Actions I have been completed on the Closing Date I prior to 5.00 p.m. CET (the “Successful
Closing I”). |
| 2.4 | | Failed Closing I. In the event that a Successful Closing I does not occur on the Closing Date
I, the Closing I shall be deemed to have failed (the “Failed Closing I”). In the event of a
Failed Closing I all Closing Actions I shall be considered null, void, ineffective and
non-binding as between the Parties and shall be undone immediately. In the event of a Failed
Closing I each of the Buyer and the Seller may request at its sole discretion by written
notice to the other Party a repeated Closing I (the “Repeated Closing I”) on a Business Day to
be determined by the requesting Party not earlier than five Business Days and not later than
ten Business Days after the Failed Closing I, but in no event later than 30 March 2007,
provided, however, that the requesting Party has not prevented the occurrence of a Successful
Closing I by breach of this Agreement. Regarding the Repeated Closing I the provisions for the
Closing I shall apply mutatis mutandis. |
| 2.5 | | Closing Date II. The Buyer shall notify the Seller of the date for the Closing II in respect
of the Purchased Shares II (the “Closing Date II”), which shall be a Business Day (i) not
earlier than the fifth Business Day after receipt of such notice by the Seller, and (ii) in no
event later than 15 June 2007. In the event of a Successful Closing I, the Closing II and the
Closing Actions II shall take place on the Closing Date II commencing at 10 a.m. CET (the
“Closing II”). For the avoidance of doubt, a Repeated Closing I shall be deemed a Successful
Closing I for purposes of this Clause 2.5 (i). |
| 2.6 | | Actions at Closing II. At Closing II, the following actions shall be taken (the “Closing
Actions II”) to implement a delivery against payment transaction
(Lieferung-gegen-Zahlung-Geschäft) in the DS.A-System operated by Oesterreichische
Kontrollbank AG (außerbörsliche Wertpapierabwicklung): |
| | 2.6.1 | | The Buyer shall irrevocably instruct Deutsche Bank AG, Frankfurt am Main, to
transfer the Purchase Price II to the Seller’s Account. |
| | 2.6.2 | | The Seller shall irrevocably instruct UBS AG, Zurich, to transfer the
Purchased Shares II to the Share Account; |
| | 2.6.3 | | The Seller shall submit to Buyer’s counsel a written confirmation of
Deutsche Bank AG, Frankfurt am Main, that the Purchased Shares II have been credited
to the Share Account. |
| | 2.6.4 | | The Buyer shall submit to Seller’s counsel a written confirmation of UBS AG,
Zurich, that the Purchase Price II has been credited to the Seller’s Account. |
| 2.7 | | Successful Closing II. The Closing II shall be deemed completed, if each and all Closing
Actions II have been completed on the Closing Date II prior to 5.00 p.m. CET (the “Successful
Closing II”). |
| 2.8 | | Failed Closing II. In the event that a Successful Closing II does not occur on the Closing
Date II, the Closing II shall be deemed to have failed (the “Failed Closing II”). In the event
of a Failed Closing II the provisions for the Failed Closing I (Clause 2.4) shall apply
mutatis mutandis, but in no event later than 29 June 2007. |
| 2.9 | | Termination of the Call Option Agreement. Upon the signing of this Agreement the Call Option
Agreement shall be deemed terminated and invalid in its entirety with immediate effect. For
the avoidance of doubt, such termination shall be effective with respect to each and any of
the PA Shares. In the event that the Buyer has caused a Failed Closing I or a Failed Closing
II (i) by failing to submit a notice pursuant to Clause 2.1 or Clause 2.5, or (ii) by failure
to perform any of the Closing actions pursuant to Clauses 2.2.1, 2.2.4, 2.6.1 and/or 2.6.4,
and the Seller has rescinded this Agreement or any part thereof, the termination and
invalidity of the Call Option Agreement pursuant to this Clause 2.9 shall be not affected. |
| 3 | | REPRESENTATIONS AND WARRANTIES OF THE SELLER |
The Seller represents and warrants to the Buyer that the following statements contained in
this Clause 3. (Representations and Warranties of the Seller) (the “Seller’s Warranties”)
are true and accurate as of the Signing Date, the Closing Date I and the Closing Date II,
unless explicitly stated otherwise in this Clause 3:
| 3.1 | | Organization. The Seller is a limited liability company (Gesellschaft mit beschränkter
Haftung), duly organized and validly existing under Austrian law. |
| 3.2 | | Authorization of Transaction. The Seller has full corporate power and authority to execute
this Agreement and to perform its obligations hereunder. This Agreement constitutes valid and
legally binding obligations of the Seller, enforceable in accordance with its terms and
conditions. The Seller does not need to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or governmental agency in order to
complete the transactions contemplated by this Agreement. |
| 3.3 | | Non-contravention. Neither the execution of this Agreement nor the completion of the
transactions contemplated hereby, violates any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Seller is subject or any provision of its charter
or bylaws. |
| 3.4 | | Legal Ownership of the Purchased Shares. The Seller owns, both legally and beneficially, the
Purchased Shares free and clear of any restrictions on transfer, security interests, options,
warrants, purchase rights, contracts, commitments, claims, and demands affecting any of the
Purchased Shares. The Seller is not a party to any option, warrant, purchase right,
trusteeship agreement, formal or informal arrangement or other contract or commitment that
could (i) require the Seller to sell, transfer, encumber or otherwise dispose of the Purchased
Shares or (ii) provide any third party with any interest, right, or entitlement in respect of
the Purchased Shares. There are no claims, actions or proceedings pending or threatened in
relation to the title or the ownership interests in the Purchased Shares. For the avoidance of
doubt, none of the Seller’s commitments and obligations set out in the Call Option Agreement
or in this Agreement shall constitute a breach of this Clause 3.4. The representation and
warranties set out in this Clause 3,4 shall apply (i) as of the Signing Date and as of the
Closing Date I in respect of the Purchased Shares I, and (ii) as of the Signing Date and the
Closing Date II in respect of the Purchased Shares II. |
| 4 | | REPRESENTATIONS AND WARRANTIES OF THE BUYER |
The Buyer represents and warrants to the Seller that the following statements contained in
this Clause 4 (Representations and Warranties of the Buyer) (the “Buyer’s Warranties”) are
true and accurate as of the Signing Date, the Closing Date I and the Closing Date II:
| 4.1 | | Organization. The Buyer is a joint stock company (Aktiengesellschaft), duly organized and
validly existing under the laws of Austria. |
| 4.2 | | Authorization of Transaction. The Buyer has full corporate power and authority to execute
this Agreement and to perform its obligations hereunder. This Agreement constitutes valid and
legally binding obligations of the Buyer, enforceable in accordance with its terms and
conditions. The Buyer does not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in order to
complete the transactions contemplated by this Agreement. |
| 4.3 | | Non-contravention. Neither the execution of this Agreement nor the completion of the
transactions contemplated hereby, violates any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any provision of its charter or
bylaws. |
| 4.4 | | Claims. There are no claims, actions or proceedings pending or threatened, which might have a
material adverse effect on the financial condition of the Buyer or impair its ability to
perform its obligations under this Agreement, or which might affect the validity or
enforceability of this Agreement. |
| 5 | | LIABILITY OF THE PARTIES |
| 5.1 | | General. Each Party shall cover all damages (including costs and expenses, such as court fees
and legal fees) incurred by the other Party as a result of such Party making any untrue
warranty or failing to perform any of its covenants or obligations contained in this
Agreement. In no event shall any Party be liable to the other Party for incidental, indirect,
special or consequential damages, such as losses of revenues or profits. Payment of any claim
shall to the extent of such payment satisfy and preclude any other claim which is capable of
being made in respect of the same subject matter. |
| 5.2 | | Liability of Seller. If any of the Seller’s Warranties are breached or untrue or misleading,
the Seller shall pay to the respective Buyer on demand |
| | 5.2.1 | | the aggregate of the full amount by which the value of the Purchased Shares
is or becomes less than it would have been if the Seller’s Warranties had not been
breached or untrue or misleading; and |
| | 5.2.2 | | all costs, expenses and disbursements suffered or incurred by the Buyer with
respect to the Purchased Shares as a result of any Seller’s Warranties being breached
or untrue or misleading. |
| 5.3 | | No Further Representations. The Parties acknowledge and agree that the representations and
warranties expressly set forth in Clause 3 (Representations and Warranties of the Seller) and
Clause 4 (Representations and Warranties of the Buyer) are the only representations,
warranties or assurances of any kind given by or on behalf of the Seller and the Buyer,
respectively. |
| 5.4 | | No Set-off. The Buyer hereby waives any right of set-off or counterclaim, deduction or
retention which the Buyer might otherwise have in respect to any claim by the Buyer of a
breach of this agreement or out of any payments which the Buyer may be obliged to make (or
procure to be made) to the Seller pursuant to this Agreement or otherwise. |
| 5.5 | | Survival of Representations and Warranties. All claims against the Seller on the grounds of
Clause 3.4 (Legal Ownership of the Purchased Shares) shall be time barred, unless they are
asserted by institution of arbitration proceedings within five years after the Closing Date I.
All other claims (i) against the Seller for a breach of any of the representation and
warranties set out in Clause 3 (Representations and Warranties of the Seller) or (ii) against
the Buyer for a breach of any of the representation and warranties set out in Clause 4
(Representations and Warranties of the Buyer) shall be time barred, unless they are asserted
by institution of arbitration proceedings within 18 months after the Closing Date I. |
| 6 | | ARBITRATION, GOVERNING LAW |
| 6.1 | | Arbitration. Any dispute, controversy or claim arising out of or in relation to this
Agreement, including the validity, invalidity, breach or termination thereof, shall be
resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the
Swiss Xxxxxxxx of Commerce in force on the date when the Notice of Arbitration is submitted in
accordance with these Rules. The number of arbitrators shall be three. The seat of the
arbitration shall be in Zurich, Switzerland. The arbitral proceedings shall be conducted in
English. |
| 6.2 | | Cost of Dispute. In the event of a dispute pursuant to Clause 6.1 arising from or relating to
this Agreement or the breach hereof, the Party prevailing in such dispute shall be entitled to
recover reasonable interest on the total amount owed, all reasonable attorneys’ fees and
expenses and arbitral and arbitral-related costs incurred in ascertaining such Party’s rights
and in enforcing such Party’s rights under this Agreement. |
| 7.1 | | Relationship of the Parties. This Agreement shall not create a partnership or joint venture
between the Parties. |
| 7.2 | | No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any
person other than the Parties and their respective universal legal successors. |
| 7.3 | | Entire Agreement. This Agreement constitutes the entire agreement between the Parties and
supersedes any prior understandings, agreements, or representations by or between the Parties
and/or third Parties, written or oral, to the extent they are related in any way to the
Acquisition. |
| 7.4 | | Notices. All agreements, instructions, notices, requests, demands, claims, approvals,
consents, determinations, identifications, and other communications (the “Communications”)
hereunder shall be made in writing. Any Communications hereunder shall be duly delivered if
sent by (i) registered or certified mail, return receipt requested, postage prepaid, or (ii)
expedited courier and in each case addressed to the intended recipient as set forth below: |
if to the Seller:
Cross Industries AG
Xxxxxxxxxxxx 0
X-0000 Xxxx
Xxxxxxx
Att. Xxxxxx Xxxxx
with a copy to:
Xxxxxx Xxxxx
Xxxxx Maxl & Partner Rechtsanwälte GmbH
Xxxxxxxxxxxx 0
X-0000 Xxxxxx
Xxxxxxx
if to the Buyer:
Polaris Austria GmbH
c/o Polaris Industries Inc.
Xxxx Xxxxxx
0000 Xxxxxxx 00,
Xxxxxx, XX 00000, XX
with copies to:
Xxxx XxXxxxxxx
Polaris Industries Inc.
0000 Xxxxxxx 00,
Xxxxxx, XX 00000, XX
and:
Xxxxx X. Xxxxxxxx
Xxxxxx, Xxxxxxxx and Xxxxxx, P.A.
5500 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000, XX
and:
Xxxxx Xxxxx
CMS Xxxxx-Rohrwig Xxxxx Rechtsanwälte GmbH
Xxxxxxxxxxxxxxxx 0
A–1010 Vienna
Austria
In addition, the Parties shall send by electronic mail a copy of all Communications to the
respective recipients set out above. Any Party may change the address to which
Communications hereunder are to be delivered by giving the other Party notice in the
manner set out herein.
| 7.5 | | Governing Law. This Agreement shall be governed by and construed in accordance with Austrian
law, without giving effect to conflict of laws provisions or rules (of any jurisdiction) that
would cause the application of the laws of any jurisdiction other than Austria. |
| 7.6 | | Amendments. No amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all Parties. |
| 7.7 | | Waivers. Except as expressly provided for in this Agreement, no course of dealing and no
delay in exercising, or omission to exercise, any right, power or remedy accruing to a Party
upon any breach by the other Party of any of its representations, warranties or covenants
arising under this Agreement shall impair any such right, power or remedy or be construed to
be a waiver thereof or an acquiescence therein. No waiver by any Party of any right, default,
misrepresentation, or breach of representation, warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any other prior, contemporaneous or
subsequent right, default, misrepresentation, or breach of representation, warranty or
covenant hereunder or affect in any way any rights arising by virtue of any other such
occurrence. Any such waiver shall be deemed effective only if contained in writing and signed
by the Party charged with such waiver. The failure by a Party to exercise its right to
terminate this Agreement in the event of any occurrence giving rise thereto shall not
constitute a waiver of its rights in the event of any other occurrence giving rise to such
right. |
| 7.8 | | Severability and Blue-Penciling. Any term or provision of this Agreement that is invalid,
incomplete (lückenhaft) or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in any other
jurisdiction. Any invalid or unenforceable term or provision shall be deemed replaced by a
valid or enforceable provision which most accurately reflects the economic purpose of the
invalid or unenforceable term or provision. Any incompleteness (Xxxxx) shall be deemed filled
by a valid, complete and enforceable provision which most accurately reflects the economic
purpose of this Agreement and the intent of the Parties. |
| 7.9 | | Taxes and Levies. Subject to Clause 7.10, each and any of the Parties shall bear and pay all
personal taxes and levies which may be imposed upon it by any government or competent
authority relating to the transactions contemplated by this Agreement. |
| 7.10 | | Stamp Taxes and Duties. The Buyer shall pay any registration or transfer taxes, stamp duties
or similar levies, and any penalties or interest that may be due with respect thereto, that
may be imposed by any government or competent authority under or in connection with this
Agreement |
| 7.11 | | Integration and Construction. The preamble of this Agreement is an integral part of this
Agreement. Headings and Clauses are for the purpose of organization only and shall not be used
to interpret this Agreement. The exhibits, annexes, and schedules identified in this Agreement
are incorporated herein by reference and made a part hereof and defined terms of this
Agreement have the same meaning if used in such exhibits, annexes, and schedules. Any
obligation hereunder that falls on a day that is not a Business Day shall be postponed to the
next Business Day. Reference herein to any statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires otherwise. |
| 7.12 | | Further Assurance and Co-operation. Each Party shall promptly and in good faith do and
perform or cause to be done and performed all such further acts and things and shall execute
and deliver all such other agreements, certificates, instruments and documents as any other
Party may reasonably request in order to carry out the intentions and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby. |
| 7.13 | | Fees. Each Party shall bear the fees and expenses of its own advisers. |
| 7.14 | | Language. This Agreement is made in the English language. For the avoidance of doubt, the
English language version of this Agreement shall prevail over any translation of this
Agreement. However, where a German translation of a word or phrase appears in the text of this
Agreement, the German translation of such word or phrase shall prevail. |
| 7.15 | | Counterparts. This Agreement may be entered into in any number of counterparts and by the
Parties in separate counterparts, each of which when so executed and delivered shall be an
original, but all the counterparts shall together constitute one and the same instrument. This
Agreement shall be signed in 2 (two) originals which shall be delivered to PA and CI. |
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS LEGALLY BINDING AGREEMENT AS OF THE DATE
FIRST ABOVE WRITTEN.
3
SIGNATORIES
Polaris Industries Inc.
/s/Xxxxxx X. Xxxxxx
By : Xxxxxx X. Xxxxxx
Title : Chief Executive Officer
Polaris Austria GmbH
/s/Xxxxxx X. Xxxxxx
By : Xxxxxx X. Xxxxxx
Title : Managing Director
CROSS Industries AG
| | | |
| /s/Xxxxxx Xxxxx
| | /s/Stefan Pierer |
|
| | |
|
| | |
| By : Knünz
| | Pierer |
|
| | |
|
| | |
| Title :CFO
| | CEO |
|
| | |
Eternit Holding GmbH
| | | |
| /s/Xxxxxx Xxxxx
| | /s/Xxxxxx Xxxxxx |
|
| | |
|
| | |
| By : Knünz
| | Pierer |
|
| | |
|
| | |
| Title :CFO/Director
| | CEO/Director |
|
| | |
|
| | |
4
