SHARE PURCHASE
Share purchase contract
among
1. Xx. Xxxxx Xxxxx Xxxxx, Xxxxx Xxxxxxx 0, 00000 Xxxxxxxxx;
2. Heinz-Xxxxxx Xxxxx, Herrschaftsstrasse 50, 73087 Xxxx;
3. Xxxxxxx Xxxxx, Xxxxxxxxx 00, 00000 Xxxx;
4 Xxxxxx Xxxxx, Herrschaftsstrasse 50, 73087 Xxxx
- hereinafter referred to jointly as "Sellers" -
and
5. SESVENNA 19. Xxxxxxxxxxxxxxxxxxxx XxxX0, Munich, in the future to be
operating as CFC Oeserwerk GmbH, Xxxxxxxxxxx 00, 00000
Xxxxxxxxx
- hereinafter referred to as "purchaser" -
as well as
6. CFC International, Inc., 000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, XX 00000,
XXX
- hereinafter referred to as "CFC" -
Prefatory Notes
1. SELLERS Xxxxxxx Xxxxx and Xxxxxx Xxxxx are partners with unlimited
liability while SELLERS Xx. Xxxxx Xxxxx Xxxxx and Xxxxx-Xxxxxx Xxxxx
are partners with limited liability in the Oeserwerk Xxxxx Xxxxx &
Sohne KG, domiciled in Goppingen, entered in the Register of Companies
at the Civil Court at Goppingen at Roll Number 1400 (hereinafter
referred to as the "company").
The COMPANY operates an enterprise engaged in the manufacture and
distribution of films and similar products, of products which result
from an advanced development in this field, and of machines which serve
to treat or process these products.
2. The COMPANY is in each case the sole partner in the Oeser France SARL
and in the Oeser Italia S.r.l. (the "SUBSIDIARIES"). The SUBSIDIARIES
and the COMPANY are referred to jointly as the COMPANIES.
3. The COMPANY is the owner of the following pieces of real property
(the "Properties") in Caputh:
a) Plot Nos. 193, 195, 199 and 203 in Plat 1, entered in the Land
Register at the Civil Court at Caputh, for Caputh,
Sheet 641.;
b) Xxxx Xx. 000 in Plat 1, entered in the Land Register at the
Civil Court at Caputh, for Caputh, Sheet 940.
c) Xxxx Xx. 000 in Plat 1 and Xxxx Xx. 00 in Plat 10, each
entered in the Land Register at the Civil Court at Caputh,
for Caputh, Sheet 852.
In accordance with the wishes of the parties to this contract the
Properties are to be withdrawn by the PARTNERS. To this end the
Properties were transferred with the document of Notary Public Goser,
located in Sussen, dated March 18, 1999, to the Grundstucksgesellschaft
Krahenburg-Caputh GmbH & Co. KG.
Moreover the PARTNERS, also on March 18, 1999, have withdrawn from the
COMPANY's assets the claims to restitution for properties situated in
the territory demarcated in Article 3 of the German Unification Treaty,
doing so with the document of the Notary Public Goser, located in
Sussen, transferring these claims to the Grundstucksgesellschaft
Krahenburg-Caputh GmbH & Co. KG.
4. All the shares in the PURCHASER are held by the SESVENNA 20.
Vermogensverwaltungs GmbH, Munich, to be operating in the future as CFC
Oeser Europe GmbH, Goppingen (hereinafter referred to as "CFC EUROPE")
this being an indirect subsidiary of CFC. CFC is an enterprise which
also engages in the manufacture and sale of films and similar products.
CFC desires to manufacture and distribute these products in Europe as
well. CFC consequently intends to acquire all the shares in the
COMPANY, acting indirectly through the PURCHASER. To this end the
parties to the contract agree as follows:
Section 1
Ownership of the COMPANY
1. The following persons are today unlimited-liability partners in the COMPANY,
holding the following capital shares:
a) Xx. Xxxxxxx Xxxxx XX 152,977.00
b) Mr. Jochen Xxxxx XX 76,351.00
-------------------------
Total of capital shares held by the
unlimited-liability partners DM 229,328.00
2. On December 31, 1998, the following persons were limited-liability
partners in the COMPANY, holding the following capital shares:
a) Xx. Xxxxx Georg Xxxxx XX 448,114.00
b) Xx. Xxxxx-Jochen Xxxxx XX 1,011,714.00
c) Xx. Xxxxxx Xxxxxx-Plenio DM 575,791.00
d) Xx. Xxxxxxxxx Xxxxxxx DM 627,029.00
e) Ms. Xx. Xxxxx Xxxxxxxx DM 718,595.00
f) Xx. Xxxxxxx Xxxxxxx DM 105,131.00
g) Xx. Xxxxxxx Xxxxxxx DM 108,294.50
h) Xx. Xxxxxxxxxx Xxxxx DM 246,558.00
i) Xx. Xxxxxxxx Xxxxx DM 238,492.00
j) Xx. Xxxxxxx Xxxxx XX 631,704.00
k) Xx. Xxxxxxxx Xxxxxxxxxxxxxxx DM 108,294.50
l) Xx. Xxxxxxxxx Xxxxxxxx DM 765,079.00
m) Xx. Xxxxxx Xxxxxxx DM 346,403.00
n) Xx. Xxxx Xxxxx DM 105,222.00
o) Mr. Xxxxx-Xxxxxxxxx Xxxxxxx XX 127,038.00
p) Mr. Jens Xxxxxxxx XX 103,665.00
q) Xx. Xxxxx Xxxxxxxx-Xxxxx XX 103,665.00
r) Ms. Veronika Lieckfeld DM 76,351.00
s) Xx. Xxxxxxxx Xxxxxxxx DM 122,362.00
t) Xx. Xxxxxxxxxx Oellbrunner DM 152,978.00
u) Ms. Xxxxxx-Xxxxxxx Xxxxxxxx XX 70,119.00
v) Xx. Xxxxxx Xxxxx XX 76,351.00
w) Xx. Xxxxx-Xxxxxx Xxxxxxxx XX 274,813.00
x) Xx. Xxxxx-Xxxxxxxx Xxxxxxxx XX 274,813.00
y) Xx. Xxxxxxxxx Xxxxxxx DM 76,351.00
-------------------------
Total of capital shares held by
the limited-liability partners DM 7,494,927.00
=========================
3. After December 31, 1998, Xx. Xxxxx Xxxxxxxx-Xxxxx assigned her
limited-liability share, at a value of DM 103,665.00, to Xx. Xxxx
Xxxxxxxx. Xx. Xxxxx Xxxxxxxx-Xxxxx has thus departed from the COMPANY.
The positive balance in her private account, in the amount of DM
3,963.38, has been paid out to her.
4. The unlimited-liability partners in the COMPANY listed at Paragraph 1
and the limited-liability partners in the COMPANY listed in Paragraph 2
are referred to hereinafter jointly as the "PARTNERS."
5. The SELLERS will acquired the shares of all those PARTNERS who are not
included among the SELLERS, in each case under the suspensive condition
that the purchase price as per Section 3, Paragraph 1, has been paid
and the STOCK as per Section 3, Paragraph 2, has been transferred, so
that the nominal value of all the PURCHASER's capital shares at the
COMPLETION DATE (cf. Section 2, Paragraph 2) will amount to DM
7,724,255.00. The PURCHASER is aware that the capital shares on
December 31, 1998, were diminished by losses to a total of DM
6,254,018.00 (in words: six million two hundred fifty four thousand and
eighteen Deutschmark).
Section 2
Purchase and assignment
1. The SELLERS sell herewith, with economic effect on March 19, 1999, all
capital shares in the COMPANY, with a total nominal value of DM
7,724,255.00 (hereinafter referred to as the "shares"). The PURCHASER
herewith accepts the sale. Also sold are all credit balances in the
partners' accounts on March 19, 1999, and in particular any of the
PARTNERS' claims in respect of loans made to the COMPANY, with the
exception of the balance in her private account paid out to Xx. Xxxxx
Xxxxxxxx-Xxxxx as per Section 1, Paragraph 3.
2. The SELLERS herewith assign all SHARES, with economic effect on March
19, 1999, to the PURCHASER, who accepts the same. Also assigned at the
same time are all credit balances in the partners' accounts on March
19, 1999, and in particular claims in respect of loans made to the
COMPANY. The real transfer of title to the SHARES and all credit
balances in the partners' accounts on March 19, 1999, with the
exception of the item specified in Section 1, Paragraph 3, is subject
to the following suspensive conditions:
a) Payment in full of the purchase price as specified in Section 3,
Paragraph 1; b) The transfer of the STOCK and any associated documents
as specified in Section 3, Paragraph 2; c) The satisfaction of the
PURCHASER's obligations as per Section 4, Paragraphs 2 and 3; d) The
acquisition of all SHARES by the SELLERS.
The day upon which the suspensive conditions listed above at a) to
d) have been satisfied is referred to hereinafter as the "COMPLETION
DATE".
3. The sellers Xx. Xxxxx Xxxxx Xxxxx and Xxxxxxx Xxxxx undertake to
relieve the PURCHASER from the COMPANY's retirement pension obligations
vis a vis employees and former employees. If after the present day the
PURCHASER or the COMPANY discharges pension obligations in accordance
with Clause 1, then the PURCHASER shall be entitled to claim
reimbursement for the sellers Xx. Xxxxx Xxxxx Xxxxx and Xxxxxxx Xxxxx.
4. The SELLERS have by way of the declaration contained in Annex 2.4
waived all claims vis a vis the COMPANY and in particular all claims to
retirement benefits and remunerations, to include remunerations for
partners' inventions and royalties based on the COMPANY's Articles of
Association, including their annexes.
Section 3
Purchase price
1. The total purchase price for the SHARES amounts to DM 6,000,000.00 (in
words: six million Deutschmark). It shall be remitted, discharging all
indebtedness vis a vis the SELLERS, to the special account "Verkauf
Oeserwerk", Account number 222265 at the Deutsche Bank, Goppingen,
Routing Transit Number 610 700 78. The claim to the purchase price
becomes payable within three banking days after fulfillment of the
following prerequisites:
a) Fulfillment of the obligations as per Section 4, Paragraphs 2
and 3;
b) Demonstration vis a vis the PURCHASER that the transfer of all
SHARES to the SELLERS is satisfied only subject to the
suspensive condition that the PURCHASER fulfils its obligation
vis a vis the SELLERS to pay the purchase price, including the
transfer of stock;
c) Effective waiver by the SELLERS and all other shareholders to
all claims against the COMPANY, to include all claims to
pensions, remuneration and royalties based upon the COMPANY's
Articles of Incorporation, to include all annexes to the same;
Crediting to the specified bank account is authoritative in regard to
fulfillment. If the PURCHASER is in default of payment, then interest
shall be paid on the amount not remitted punctually at a rate 3.5% p.a.
above the three-month EURIBOR rate in effect on the date at which the
purchase price becomes due.
2. The PURCHASER shall transfer to the PARTNERS (Section 428, German Civil
Code), with real effect at the latest ten banking days following the
fulfillment of the conditions specified above in Paragraph 1,
Letters a) to c) a total of 100,000 (in words: one hundred thousand)
voting shares in CFC, so-called "Common Stock" (hereinafter referred to
as "STOCK"). Of those 100,000 shares of STOCK, 55,532 shall be
transferred directly to the PARTNERS, divided, as shown in Annex 3.2;
the other 44,468 shall, as is also shown in Annex 3.2 and in accordance
with Paragraph 3, be given to bank trust administration by the
Deutsche Bank AG, Goppingen Branch Office. The PURCHASER is deemed to
have satisfied its obligations in Clauses 1 and 2 when the Deutsche
Bank AG, Goppingen Branch Office, receives the share certificates for
the STOCK. The STOCK is not registered as per the 1933 Securities Act
in its current version (the "Securities Act") and thus is subject to
the limitations on sale set forth in Rule 144 of the Securities Act in
its current version. The share certificates for the STOCK shall bear a
legend indicating the restriction on disposal. The PURCHASER shall
transfer to the SELLERS, in addition to the stock certificates,
the documents required by the law of the United States of America to
demonstrate the SELLERS' ownership to CFC, to all government agencies,
to the Securities and Exchange Commission, to the stock exchanges and
to every third party which intends to acquire the STOCK or rights to
the STOCK or to a bank which deposits the STOCK in a custodianship
account in favor of the SELLERS.
3. Of the 100,000 shares of STOCK owed in accordance with Paragraph 2, the
PURCHASER is entitled to place in bank trust administration with the
Deutsche Bank AG, Goppingen Branch office, 44,468 shares of STOCK (the
"WITHHELD STOCK"). In accordance with the bank trust administration
agreement to be concluded with the Deutsche Bank AG, access to the
WITHHELD STOCK shall be possible only jointly by the CFC and the
SELLERS; the SELLERS' entitlement to access may be exercised by each
individual SELLER. CFC shall approve the release of the WITHHELD STOCK
to the SELLERS following the expiry of one year following the
COMPLETION DATE but deducting the number shares of WITHHELD STOCK
corresponding to the amount of the claims - calculated in accordance
with Section 8, Paragraph 5, penultimate clause - which the CFC or the
PURCHASER has made good against the SELLERS due to infringement of the
guarantees (Section 7 in conjunction with Section 8) (the "FROZEN
STOCK"). If the CFC or the PURCHASER has made good such a claim within
one year following the COMPLETION DATE, then CFC shall consent to
the release of the FROZEN STOCK in each case to the extent - calculated
as prescribed in Section 8, paragraph 5, penultimate clause - in which
the SELLERS satisfy the claims made good as per Clause 3 or as soon as
it is determined without further possibility of appeal or is
acknowledged in writing by CFC that the claims made good by CFC or the
PURCHASER in accordance with Clause 3 no longer exist.
4. The purchase price shall be reduced by that amount by which the
COMPANY's bank liabilities at the present day exceed the value of DM
18,100,000 (in words: eighteen million one hundred thousand
Deutschmark).
5. If Xx. Xxxxx Xxxxx sells so many shares of CFC stock that his holdings
in CFC fall below 35% (the "STOCK SALE"), then the PURCHASER shall
ensure that the PARTNERS are granted entitlement to concurrent rights
of sale at the same terms for that percentage of their stock in CFC
which corresponds to the amount of CFC stock sold by Xx. Xxxxx Xxxxx in
the course of the STOCK SALE seen as a percentage of the total CFC
stock held by Xx. Xxxxx Xxxxx prior to the STOCK SALE.
Section 4
Exemption from joint liability for debts payable to banks
1. The COMPANY has on March 18, 1999, bank obligations listed in Annex 4.1
vis a vis the credit institutions named there.
2. The PURCHASER undertakes, subject to Paragraph 3, to discharge
completely either itself and/or by way of a company associated with it
the credit obligations as specified in Paragraph 1, up to a maximum
amount of DM 18,100,000.00 (in words: eighteen million one hundred
thousand Deutschmark) or to assume those obligations in such a way that
the banks exempt the SELLERS from personal joint liability. To this end
the PURCHASER shall submit to the SELLERS declarations made by the
banks, with content in the spirit of the following:
"On behalf of the ........ Bank we declare that the .........
bank will lay no claim on the unlimited-liability partners Xx.
Xxxxx Xxxxx Xxxxx, Xxxxx-Xxxxxx Xxxxx, Xxxxxxx Xxxxx and
Xxxxxx Xxxxx as individuals bearing personal liability for
credit obligations previously incurred, currently in existence
or incurred in the future by the Oeserwerk Xxxxx Xxxxx & Sohne
KG or its legal successor."
The obligations from which the SELLERS are released by way of the above
declarations shall amount to a maximum of DM 18,100,000.00, wherein the
PURCHASER may select at its own discretion the obligations which it
assumes and the amount to which it assumes the same if and to the
extent that the total of the obligations exceeds DM 18.100,000.00.
3. The PURCHASER and the SELLERS will to the best of their power attempt
to obtain the statement of exemption from liability as per Paragraph 2
also in regard of the COMPANY's obligations vis a vis the Deutsche
Industrie-Kreditbank (the "IKB OBLIGATIONS"). The PURCHASER does,
however, fulfill its obligations as per Paragraph 2 and in regard to
the IKB OBLIGATIONS even now in that the PURCHASER declares herewith to
hold the SELLERS free of any and all claims resulting from the IKB
OBLIGATIONS and to reimburse to the SELLERS following the COMPLETION
DATE payments made against the IKB OBLIGATIONS.
Section 5
Exemption from liability by the PURCHASER
Over and above the credit obligations to be assumed pursuant to Section 4,
Paragraph 2, the PURCHASER relieves the SELLERS of all debts and obligations
which were incurred, now exist or shall be incurred in conjunction with the
business operations, deriving from the business operations or as a consequence
of the COMPANY's business operations and for which the SELLERS are liable in
accordance with Section 128 of the Handelsgesetzbuch {German Commercial Code}.
This does not apply to obligations (a) which derive from intentional, tort
liability or (b) which would culminate in a claim by the PURCHASER or CFC
against the SELLERS or which for other reasons based on this contract would not
have to be assumed.
Section 6
Company management
1. Xx. Xxxxxxx Xxxxx has, prior to the conclusion of the present contract,
concluded with the PURCHASER an employment contract as general manager,
Xx. Xxxxxx Xxxxx an employment contract as commercial affairs manager.
2. The SELLERS undertake to manage the COMPANY's business up to the
COMPLETION DATE in close coordination with CFC and always within the
framework of orderly business operations and to engage in transactions
beyond the scope of ordinary business operations only with the prior,
written consent of the PURCHASER or CFC.
Section 7
SELLERS' warranties
The SELLERS warrant as follows, referenced to the COMPLETION DATE, wherein
warranties which are given in regard to the COMPANIES are applicable to each
individual COMPANY:
1. that the COMPANY is a limited-liability partnership properly instituted
in accordance with the laws of the Federal Republic of Germany and now
existing;
2. that all facts eligible for entry, shown in the extract from the
Register of Companies enclosed as Annex 7.2, are reflected completely
and truly, and in particular that no resolutions eligible for entry
have been adopted which have not yet been entered in the Register of
Companies;
3. that the limited partnership capital contributions have been paid in
full and, subject to the withdrawal of the assets listed in Clause 2 of
the Prefatory Notes, have not been refunded and that there exists no
obligation for refunding and that they have been diminished in value
due to losses as of December 31, 1998, to an extent which, in total,
does not exceed the value specified in Section 1, Paragraph 5;2 the
PURCHASER is aware that the COMPANY has registered further losses since
December 31, 1998;
4. that the SHARES as described in Section 1 do exist, that they are the
property of the PARTNERS as identified in Section 1, and that they are
not encumbered by any entitlements of third parties, and in particular
that
a) no SHARE has been attached, pledged, assigned by way of
security or for other reasons;
b) there exist no options or other rights of third parties to the
acquisition or encumbrance of any of the SHARES;
c) no SHARE is the subject of any trust;
d) no SHARE or entitlement arising from a SHARE is the subject of
usufructuary rights of third parties, sub-holdings, dormant
partnerships or similar relationships or encumbrances under
company law;
e) the sale of the SHARES to the PURCHASER does not require any
assents which have not yet been given;
f) no insolvency proceedings have been applied for or opened in
regard to the COMPANY's assets or the assets of one or more of
the SELLERS and that there are no circumstance prevailing
which could justify a challenge to the sale of the SHARES in
accordance with bankruptcy laws or the provisions of the
Contestation Act.
Excepted from Letters a), b), c) and d) are entitlements on
the basis of which the SELLERS acquire the SHARES of
their co-partners in accordance with Section 1, Paragraph 2,
in order to then sell them to the PURCHASER;
5. a) that there are no holdings in the COMPANY other than those
depicted in Section 1, Paragraphs 1 and 2, and that with the
exception of those listed in Annex 7.5a there exist no legal
circumstances on the basis of which there exists any claim to
participation in the COMPANY's turnover or profit;
b) that the PARTNERS have no claims against the COMPANIES with
the exception of the claims by Messrs. Xxxxxx Xxxxx and
Xxxxxxx Xxxxx for remuneration through to the COMPLETION DATE
as per the Articles of Association;
6. that the COMPANY has concluded neither affiliation agreements in the
spirit of Section 291 ff. of the {German} Company Act nor joint venture
agreements nor cooperation agreements and that the COMPANY - with the
exception of providing security in the amount of DM 1,000,000 covering
the obligations of Oeser France SARL vis a vis the Deutsche Bank AG and
a letter of responsibility to the amount of ITL 500,000,000 vis a vis
the Instituto Bancario, San Paolo di Torino, I-33710 Pordenone for
Oeser Italia S.r.l. - bears no liability for obligations of any third
party based upon letters of responsibility, sureties, guarantees,
cumulative assumption of debts or similar legal basis with the
exception of the sureties listed in Annex 7.6; that there exist no
liabilities to the SUBSIDIARIES for obligations of any third party
based upon letters of responsibility, sureties, guarantees, cumulative
assumption of debts or similar legal basis;
7. that the extracts from the Land Register dated February 2, 1999,
describe truly the ownership situation for and the actual encumbrances
on the properties in Goppingen and Holzheim, that there exist no
contractual encumbrances or limitations and that, with the exception of
that in Annex 7.7b, there are no public zoning or building restrictions
on the properties in Goppingen and Holzheim; that the properties used
by the COMPANY at Xxxxxxxxxxx 00 in Goppingen-Holzheim and at
Xxxxxxxx-Xxxxxxxx-Xxxxxxxx 00 in Goppingen are owned by the COMPANY and
are encumbered with mortgages totaling no more than DM 10,765,000 and
that no encumbrance with further mortgages has been effected nor has
such been registered at the Land Registry Office;
8. that the value of the real estate in Goppingen and Holzheim plus the
value of the buildings erected subsequently as ascertained in the
Expert Assessment prepared in about 1993 by the Assessors' Committee of
the Town of Goppingen (the "ASSESSMENT") is at least DM 10,000,000.00
(in words: ten million Deutschmark) and to the best of the SELLERS'
knowledge there exist no circumstances according to which the
assumptions serving as the basis for the ASSESSMENT or the conclusions
drawn therefrom are not valid. The SELLERS do not, however, undertake
any guarantee that the price of DM 10,000,000.00 could currently be
realized on the market;
9. Proprietary rights:
a) that to the best of the SELLERS' knowledge, without having
conducted further research, Annex 7 reflects completely and
correctly the patents, utility models, design patterns,
trademarks, copyrights and other industrial proprietary rights
used, required, invented or registered in or for the business
operations for world-wide, unlimited manufacture and
distribution of the COMPANY's products;
b) that the COMPANY, with the exception of the license agreements
cited at Paragraph 10, is the unrestricted owner of the
patents, utility models, design patterns, trademarks,
copyrights and other industrial proprietary rights cited in
Annex 7; that to the best of the SELLERS' knowledge these
rights are free of any third-party entitlements, that they do
not violate any rights of third parties and are not in danger
of being cancelled or declared null and void; that in regard
to the above-mentioned industrial proprietary rights all fees
which are due have been paid and that to the best of the
SELLERS' knowledge all other activities required to keep these
rights in force have been effected in due time;
c) that to the best of the SELLERS' knowledge the operation of
the COMPANIES' business activities does not violate any
industrial proprietary rights of third parties;
d) that to the best of the SELLERS' knowledge, without having
conducted further research, there exist no restrictions in
regard to the COMPANIES' using the names "Oeser" or
"Oeserwerk";
10. Licenses:
a) that Annex 7 contains a true and complete list of all license
agreements, with the exception of software license agreements
in normal business operations, which have been concluded by
the COMPANIES;
b) that there are no fees exceeding DM 10,000 which are to be
paid annually to any third party for patents, utility models,
design patterns, trademarks, copyrights, software or other
industrial proprietary rights which are employed in the
COMPANIES' business operations if such license fees were not
cited among the license agreements listed in Annex 7 and that
the use of the industrial proprietary rights cited in the
foregoing clause is not limited by any rights of third
parties;
11. that except for the withdrawal of the assets listed in Clause 2 of the
Prefatory Notes the PARTNERS have not made any withdrawals since
December 31, 1998, and that none of the COMPANIES' liabilities vis a
vis the PARTNERS, and in particular those arising from PARTNERS' loans,
has been repaid;
12. Annual financial statements:
a) that the preliminary, consolidated annual financial statements
as of December 31, 1998 (the "ANNUAL FINANCIAL STATEMENTS")
enclosed as Annex 7.12 provide a picture of the assets,
financial and revenue situation of the COMPANY and the
enterprises affiliated with it corresponding to the actual
circumstances; that the ANNUAL FINANCIAL STATEMENTS depict
correctly and completely all the COMPANY's existing or
conditional assets and liabilities (the cash values are
reported in regard to the liabilities) and that the ANNUAL
FINANCIAL STATEMENTS have been prepared consistently in
compliance with generally recognized bookkeeping and balance
sheet rules;
b) that up to the present date and up to the cut-off date no
significant or unfavorable changes have taken place in
comparison with the ANNUAL FINANCIAL STATEMENTS and that no
changes have taken place outside ordinary business operations
in regard to the COMPANY's assets and liabilities; significant
changes in the spirit of the present Letter b) are such which
would result in deviations of at least DM 500,000 from the
ANNUAL FINANCIAL STATEMENTS;
13. Assets:
a) that the COMPANIES' real property including buildings, the
movable assets and store are in good condition, taking into
account normal depreciation, corresponding to orderly business
operations; the PURCHASER is aware that repairs as described
in Annex 7.13a are required.
b) that the COMPANIES' real property, the movable assets and
inventory of goods and in particular the assets reported in
the ANNUAL FINANCIAL STATEMENTS - with the exception of assets
sold in the course of ordinary business activity are - aside
from the retention of ownership of movable assets arising in
ordinary business activities, legal rights to attach,
encumbrances entered in the Land Register including the
extension to include movable assets as per Section 1120 of the
Civil Codes and the other rights listed in Annex 7.13b - the
unconditional property of the COMPANY, subject to the transfer
mentioned in Paragraph 3 of the Prefatory Notes, and are not
encumbered by entitlements of third parties or otherwise;
14. a) aa) that there do not emanate from the real
property belonging to the COMPANY or from the
real property used by the COMPANY in the past
(the "REAL PROPERTY") any contaminations of the
soil, groundwater or other goods of considerable
value or that such are inflicted on neighboring
properties ("ENVIRONMENTAL CONTAMINATIONS");
bb) that the operation of the COMPANY's enterprises
has in the past complied with all applicable
public regulations and in particular legal
or other environmental rules imposed by
government offices and currently complies with the
same unless the con-compliance is not substantial
and without significant effects on the
enterprise's operations or financial situation;
The SELLERS are also liable in accordance with Letters aa) and
bb) for all expenditures which are necessary or indicated as
per current or future statutes in order to carry out
activities for recognizing hazards, limiting hazards or
rehabilitation in so far as such activities are required or
indicated in order to eliminate the ENVIRONMENTAL
CONTAMINATIONS and in that way to ensure that no hazards,
considerable disadvantages or considerable nuisances for
significant protected goods, in particular those of
individuals or the public, arise or persist ("ENVIRONMENTAL
EXPENDITURES"); the SELLERS relieve the PURCHASER of all
claims by third parties and of claims by the responsible
authorities which are referenced to ENVIRONMENTAL
EXPENDITURES.
b) that, with the exception of product numbers 609HK and 609WH,
which are kept on hand for application to plastic materials,
the COMPANY produces no products and, with the exception of
those listed in Annex 7.14b, has in its inventories no
products which contain heavy metals; that the products in the
COMPANY's inventories which contain heavy metals have a book
value of less than DM 100,000 at the present day;
c) CFC undertakes to submit a copy of the environmental survey by
the ERM Xxxxxxxx to the seller Xx. Xxxxx Xxxxx Xxxxx.
15 Litigation and safeguard of rights:
that with the exception of those cited in Annex 7 no litigation or
administrative procedures with a litigation value of at least DM 25,000
are pending or, to the best of the SELLERS' knowledge, are threatening
in which the COMPANIES are involved our could become involved and that
there exist no judgments or decrees which prohibit or limit the
COMPANIES' undertaking certain actions;
16. Significant contracts:
that with the exception of the contracts and obligations listed in the
annexes cited below there exist for the COMPANY no contracts or
obligations of the types cited below which have significant impact upon
its financial and business situation and that, except in the course of
normal business operations, the contracts cited shall continue in force
unamended and that there are no prevailing circumstances, including any
which might arise as a consequence of concluding or carrying out the
present contract, which could influence or endanger the unchanged
continuation of these rights and contracts:
a) contracts of employment with the COMPANY's legal
representatives and executives, and retirement pension and
benefits packages or agreements for legal representatives and
executives; the contracts currently in force are listed in
Annex 7; the COMPANY may down to the present day remit to the
sellers Xx. Xxxxx Xxxxx Xxxxx and Xx. Xxxxx-Xxxxxx Xxxxx and
to Xx. Xxxxxxxx Xxxxx the pensions provided for in the
COMPANY's Articles of Association;
b) other employment contracts that provide for annual
remuneration of more than DM 100,000.00 or rulings in regard
to bonuses, royalties, retirement or early retirement
arrangements or that contain agreements which provide for more
than one year's advance notification of termination; the
contracts currently in force are listed in Annex 7;
c) contracts with all types of consultants with annual
remuneration of at least DM 25,000 in the individual instance;
the contracts currently in force are listed in Annex 7;
d) license agreements and other contracts regarding industrial
proprietary rights; the contracts currently in force are
listed in Annex 7;
e) contracts with customers or suppliers with a value exceeding
DM 100,000.00 per year as well as contracts which provide for
discounts, deductions, bonuses or pre-payments not in
accordance with standard business practices or which are
calculated below cost; the contracts currently in force are
listed in Annex 7;
f) rental and leasing agreements, with the exception of standard
leasing and rental agreements for office machines and
equipment; the contracts currently in force are listed in
Annex 7;
g) loans, credit lines, suretyships and furnishing security of
any kind, either granted or taken, with the exception of
normal performance bonds and loans to employees which in each
case do not exceed two months' salary; the contracts currently
in force are listed in Annex 7;
h) contracts with sales representatives, trade representatives
and franchised dealers; the contracts currently in force are
listed in Annex 7;
i) insurance policies, with the exception of insurance for
company vehicles and insurance covering hazards in low-voltage
power circuits; the contracts currently in force are listed in
Annex 7;
j) agreements limiting competition, which exclude or restrict the
COMPANY's right to trade freely in certain products in certain
territories; the contracts currently in force are listed in
Annex 7;
k) contracts with or other rights and obligations vis a vis the
SELLERS or any of their relatives in the meaning of Section 15
of the Tax Code or vis a vis other companies in which one or
more of the SELLERS or their relatives in the meaning of
Section 15 of the Tax Code has holdings of at least 5%; the
contracts currently in force are listed in Annex 7;
l) contracts or obligations out of which there could arise
obligations which in the individual case or cumulatively
amount to a total of more than DM 100,000.00 per year or which
provide for performance beyond December 31, 1999; the
contracts currently in force are listed in Annex 7;
m) company agreements and agreements with labor unions, with the
exception of industrial or nationwide collective bargaining
agreements; the contracts currently in force are listed in
Annex 7;
17. Fulfilling contracts:
a) that the COMPANY has by the COMPLETION DATE fulfilled all the
contracts mentioned above and/or has done everything necessary
to satisfy all the obligations arising from these contracts
when they become due, provided that the damages arising from
the violation of this sub-paragraph, Letter a), exceeds DM 500
in the individual case;
b) that none of the above-mentioned contracts can be terminated
or amended on the basis of the change in the COMPANY's
ownership;
c) that the SELLERS are also not aware that any third party will
modify any of the above-mentioned contracts or obligations
arising from such contracts on the basis of the transactions
provided for in the present contract;
d) that the prices quoted in all the contracts, bids, orders and
proposals which are in effect or pending at the COMPLETION
DATE and affect the sales of the COMPANY's products were
calculated in accordance with the COMPANY's previous practice
in regard to returns and profit margins;
18. Product liability and guarantee claims:
a) that the products delivered by the COMPANIES are to the best
of the SELLERS' knowledge in compliance with all regulations
under public and private law - subject to the following
special stipulation in regard to warranty claims, and in
particular that all products and services were sold subject to
standard guarantee terms and that there exist no guarantee
entitlements which could result in claims against the
COMPANIES to a value of more than DM 25,000.00 per customer;
b) that the COMPANIES have not to the present date delivered or
manufactured any goods or products from which product
liability claims could be derived and for the satisfaction of
which the COMPANIES - with the exception of the excess
provided for in the insurance contracts - could not be fully
reimbursed by insurance;
19. that the COMPANIES possess all government concessions, permits and
licenses necessary to conduct business activities and that according to
the best of the SELLERS' knowledge no revocation, no additional
requirements or limitations of these concessions, permits and licenses
are threatening; all these concessions, permits and licenses, with the
exception of building permits, are listed in Annex 7;
20. that the COMPANIES have paid all taxes, social security contributions
and other public levies associated with the time period through to
December 31, 1998, or have formed appropriate accruals in the ANNUAL
FINANCIAL STATEMENTS and, further, that all taxes, social security
contributions and other public levies which affect the period from
December 31, 1998, to the COMPLETION DATE have been paid in so far as
they were payable prior to the COMPLETION DATE; that the COMPANIES had
submitted all the required tax returns to the responsible tax
authorities prior to the COMPLETION DATE; that the COMPANIES, on the
COMPLETION DATE, were not in arrears in payments of taxes, levies or
social security contributions which are due; that the COMPANY has been
audited by the responsible internal revenue office in regard to income,
turnover and capital taxes through to and including the business year
ending on December 31, 1993;
21. that the COMPANIES are the policyholders for valid insurance policies
in force against fire, theft and other operational risks and in
particular in regard to product liability and other liability as well
as interruptions in operations, in each case with appropriate coverage
and terms, at least through June 30, 1999; a list of these insurance
policies (including the insured risk, policy number, insurance company,
annual premiums and terms) - with the exception of insurance for
company vehicles and covering hazards in low-voltage power circuits -
is contained in Annex 7;
22. that all obligations vis a vis employees, regardless of whether they
are due to statutes, contracts or operational practice, to pay and
perform regular or extraordinary remuneration, compensation,
anniversary awards or retirement payments or other payments which are
not a part of the salaries of employees in the business operations and
which are associated economically with the period prior to February 28,
1999, have been fulfilled by the COMPANIES and/or sufficient accruals
have been formed in the ANNUAL FINANCIAL STATEMENTS to cover the cash
value of these obligations in full; that, where nothing to the contrary
is listed in Annex 7, that the COMPANIES have, since January 1, 1998,
not been the subject of strikes, work stoppages or interruptions or
industrial unrest among employees;
23. that, where nothing to the contrary is listed in Annex 7, and according
to the best of the SELLERS' knowledge, no regular customer or supplier
with whom the COMPANIES transacted purchases or sales of more than DM
100,000.00 in the business year most recently ended intends to
terminate business relationships with the COMPANIES as a consequence of
the transactions provided for in the present contract;
24. that, in so far as nothing to the contrary is specified in Annex 7.24, and
since December 31, 1998,
a) the COMPANIES' business has been continued within the
framework of ordinary business operations;
b) none of the COMPANIES' material contracts has been modified or
terminated;
c) with the exception of normal salary increases, the COMPANIES'
remunerations to its legal representatives, executives,
employees, agents or consultants have not been increased;
d) no pensions, bonuses, profit-sharing schemes or other
remunerations for the COMPANIES' legal representatives,
executives or employees have been introduced, nor have
existing obligations of this type been increased;
e) the COMPANIES have not taken on any significant obligations or
sold or caused to be encumbered major assets except within the
framework of normal business activities;
f) there has been no significant deterioration in the business
profit, the financial situation, the assets, the liabilities
or the COMPANIES' equity capital;
g) there have been no damages or losses, regardless of whether or
not covered by insurance, which result in damages or losses
exceeding DM 50,000 for the COMPANIES, in so far as they are
not listed in Annex 7;
h) there are no circumstances of any other kind, emanating from
the operations, which could have a significant, negative
impact on the COMPANIES; and
i) aside from obligations devolving to the COMPANY on the basis
of the Articles of Incorporation, no payments have been made
to the SELLERS and no distribution of dividends has been
undertaken.
The SELLERS do not offer any guarantee as to the profitability of the
COMPANIES.
25. that the disposal of the SHARES does not require the consent on the
part of the spouse of any one or more SELLERS in accordance with
Section 1365 of the Civil Code or that such consent has been given;
26. a) that the COMPANY is the owner of all shares in the
SUBSIDIARIES;
b) that the SUBSIDIARIES have been properly established in
accordance with the laws of their particular domiciles and
that they are existing companies;
c) that the contributions to capital have been paid in full and
have not been returned and that there is no obligation to
repay;
d) that the partnership shares in the SUBSIDIARIES are not
encumbered with any rights of third parties and, in
particular,
aa) no shares have been attached, pledged or assigned as
security or for other reasons;
bb) there exist no options or other rights of third parties
to acquire or encumber shares in the SUBSIDIARIES;
cc) no share in the SUBSIDIARIES is the subject of any
trust arrangement or and there exist no usufructuary
rights of third parties, sub-holdings, dormant
partnerships or other corporate relationships nor
encumbrances;
dd) no insolvency or similar proceedings to realize all or
part of the assets of any of the SUBSIDIARIES have
been applied for or instituted;
e) That there exist no legal circumstances on the basis of which
any third party holds any claim to participation in the
turnover, with the exception of annual turnover bonuses, or in
the profits of any of the SUBSIDIARIES to a total of more than
DM 25,000;
27. that the SELLERS have given to the PURCHASER true, correct and complete
information on all circumstances known to them or to the best of their
knowledge recognizable to them which could have a significant impact on
the COMPANY's economic situation or the business operations. The
circumstance that the PURCHASER and its consultant have had access to
business records and an opportunity to conduct a survey of the
COMPANY's business transactions does not affect the undertakings and
guarantees. Guarantee claims are, however, excluded in so far as the
material circumstances relevant to the evaluation and their business
consequences were known to the PURCHASER; otherwise, Sections 439, 460
and 464 of the Civil Code are not applicable. The PURCHASER is assumed
to have the knowledge held by Messrs. Xxxxxx Xxxxxx and Xxxxx Xxxxx as
well as by the PURCHASER's advisors from the Doser Amereller Xxxxx /
Xxxxx & XxXxxxxx law offices and by PricewaterhouseCoopers GmbH
chartered accountants. In regard to facts with environmental relevance
and their economic consequences, the PURCHASER is assumed to have
available only the knowledge of the ERM Xxxxxxxx GmbH International.
The SELLERS bear the burden of proof for the exclusion of the warranty
entitlements in accordance with this paragraph. Sections 377 and 378 of
the Commercial Code are not applicable.
28. In so far as knowledge is key as regards the undertakings and
guarantees in accordance with the present Section 7, the SELLERS are
assumed to have the current knowledge at the disposal of the legal
representatives and COMPANY's employee Mr. Hans-Xxxxx Xxxx as well as a
knowledge of all circumstances of which Mr. Post should have been
aware.
29. In evaluating the culpability of the SELLERS in accordance with this
contract, the due care of an ordinary businessman (Section 43,
Paragraph 1 of the GmbHG [Limited Liability Companies Act]) shall be
taken as the standard. "Best knowledge" in the spirit of this contract
means active knowledge or culpable lack of knowledge.
Section 8
Infringement of the SELLERS' guarantees
1. If a guarantee is incorrect or incomplete, then the PURCHASER grants
the SELLERS a period of 30 days in which to rectify the infringement.
2. The PURCHASER is entitles to withdraw from this contract without
prejudice to its entitlement instead to demand indemnification for
damages in accordance with Paragraph 5:
a) If one of the guarantees as per Section 7, Paragraphs 1
through 5, is false and the SELLERS fail to eliminate these
rights of third parties within a reasonable period of time as
specified by the PURCHASER or
b) In case of a deliberate deception perpetrated by the SELLERS.
3. If the conditions stated in Paragraph 2 are present, then the PURCHASER
may declare withdrawal by registered mail with advice of delivery
provided that it had previously and also by registered mail with advice
of delivery unsuccessfully demanded that the SELLERS within two months
of the receipt of the demand put the COMPANY in the situation in which
it would have been if the guarantees had been correct.
4. In the event of withdrawal, CFC shall transfer back to the SELLERS all
the SHARES, free of limitations on resale and any rights of third
parties unless such limitations on resale or rights of third parties
were already in force when the SHARES were transferred to the
PURCHASER. The PURCHASER may, instead of withdrawing from the contract,
demand a reduction in the purchase price.
5. If one of the guarantees in Section 7 is violated, then the PURCHASER
may reduce the purchase price or demand from the SELLERS as joint
debtors indemnification for the damages and, if the PURCHASER has
suffered damages over and above this, then demand indemnification for
these damages as well. The PURCHASER can demand reimbursement for the
damages suffered by CFC EUROPE due to violation of the guarantees in
reference to the Oeser France SARL. It is, however, possible to claim a
reduction or indemnification for damages only if the damages resulting
from the violation of the guarantees exceeds DM 75,000.00.
Indemnification for damages shall be rendered in cash up to an amount
of DM 6,000,000.00. Any amount of damages beyond this can be paid by
re-assignment of the shares of STOCK; here the closing quotation on the
final day of trading before that day on which the written notification
of the claim for indemnification of damages by the PURCHASER is
received by the SELLERS shall be used in calculating the claim for
damages satisfied by the transfer of the shares. Any damages going
beyond this need not be compensated for by the SELLERS.
6. With the exception of claims to indemnification for damages resulting
from legal deficiencies (Section 7, Paragraphs 1 through 5) and with
the exception of claims to compensation for damages and/or
reimbursement for tax and social security levies (Section 7, Paragraph
20), claims in accordance with this present Section 8 lapse 24 months
after the COMPLETION DATE. Claims in accordance with the present
Section 8 to compensation for damages due to legal deficiencies
(Section 7, Paragraphs 1 through 5) lapse ten years after the
COMPLETION DATE.
Claims resulting from a violation of undertakings and guarantees in
regard to tax and social security liabilities (Section 7, Paragraph 22)
lapse within six months following the date upon which the assessment
note issued by the social security or tax authority becomes final
and/or unappealable.
The periods of limitation as prescribed in the present Paragraph 6
shall be suspended as soon as the PURCHASER notifies the SELLERS by
registered mail with advice of delivery of the violation of the
guarantee.
7. The foregoing guarantee regulations are final. The PURCHASER may, if
nothing to the contrary is expressly specified in this contract, lodge
no further claims against the SELLERS, regardless of the legal
justification, which arise from the infringement of contractual,
pre-contractual or legal obligations unless the SELLERS acted with
intent.
8. If, following the COMPLETION DATE, an external tax audit of the
COMPANIES is conducted, affecting the period of time through to the
COMPLETION DATE, then the SELLERS shall be given the opportunity to
participate in the audit and, in particular, in the final consultations
by way of an agent pledged to maintain professional confidentiality.
The SELLERS shall at their request and at their expense be provided
with all information necessary to protect their interests. Over and
above this the SELLERS may at their own expense demand that the company
affected by the relevant tax assessment file appeal. Proceedings shall
then be pursued by the SELLERS, at their own expense.
Section 9
Guarantees by the PURCHASER
1. The PURCHASER guarantees:
a) that CFC is a properly established and existing joint stock
company in accordance with the laws of the State of Delaware ;
b) that any contribution of capital to be paid on the STOCK has
been paid in full and has not been returned and that there
exist no obligations on the part of the shareholders to remit
payments or ancillary payments;
c) that the shares of STOCK do exist and are not encumbered with
any rights of third parties, and in particular that
aa) no STOCK has been attached, pledged or assigned as
security or for other reasons;
bb) there exist no options or other rights of third parties
to acquisition or encumbrance of the STOCK;
cc) no STOCK is the subject of any trust relationship with
the exception of the bank trust administration at
the Deutsche Bank AG, Goppingen Branch Office;
dd) no STOCK or entitlement arising from STOCK is the
subject of usufructuary rights of third parties,
sub-holdings, dormant partnerships or similar
relationships or encumbrances under company law;
d) that the sale of the STOCK is subject to no restrictions
beyond those listed in Section 3, Paragraph 2;
f)3 that no bankruptcy proceedings have been opened in regard to
the PURCHASER's assets and that there exist no circumstances
which could justify contesting the transfer of the shares of
STOCK in accordance with bankruptcy regulations, regulations
contained in legislation governing contestation or other
regulations;
g) that according to the best of the PURCHASER's and CFC's
knowledge there exist no significant circumstances emanating
from the CFC operations which could lead to the assumption
that today's stock exchange quotation for the STOCK will
decline significantly and in particular that at present no
issue of additional blocks of STOCK which could dilute the
value of the STOCK is planned. In particular the PURCHASER is
not liable for changes in stock market quotations due to
macroeconomic or monetary influences, due to a general stock
market trend or due to a deterioration of the market situation
for the PURCHASER's or CFC's products as well as due to the
introduction of a stock option plan.
Section 10
Violation of guarantees by the PURCHASER
1. If a guarantee is incorrect or incomplete, then the SELLERS grant to
the PURCHASER a reasonable period of time to rectify the violation.
2. The SELLERS and the PARTNERS are entitled to transfer the shares of
STOCK back to the PURCHASER concurrently upon payment of an additional
price of DM 12.50 (in words: twelve Deutschmark and fifty Pfennig) per
share of stock if one of the guarantees as per Section 9 is incorrect
and the violation is not rectified in accordance with Paragraph 1.
3. If the conditions described at Paragraph 2 are satisfied, then the
SELLERS can demand, by registered mail with advice of delivery, payment
of the additional purchase price. The additional purchase price is due
one week following receipt of the registered mail with advice of
delivery if the SELLERS proffer the return of the STOCK. Otherwise,
Section 3, Paragraph 1, final clause and penultimate clause applies
mutatis mutandis.
4. Paragraph 7 applies mutatis mutandis. The guarantee period for claims
in accordance with the present Section 10 is 24 months after the
COMPLETION DATE.
Section 10a
Interim financial statements, taxes
1. There exists agreement between the parties to this contract that
consolidated interim financial statements for the COMPANY, at today's
date, shall be prepared immediately and at the COMPANY's expense,
following the standard principles for bookkeeping and for the drawing
up of accounts and ensuring balance sheet continuity, and requiring
written approval by CFC and the SELLERS.
2. All taxes which fall due as a result of the COMPANY's business
operations and which are to be allocated to the period of time down to
the present date shall be borne by the SELLERS; taxes which are to be
allocated to later periods shall be borne by the PURCHASER.
3. The SELLERS undertake to submit to the tax offices responsible in each
case tax returns for the period down to the COMPLETION DATE only after
they have been examined by a tax accountant commissioned by CFC.
Section 11
Joint liability of CFC
CFC assumes joint and several co-liability for all the PURCHASER's obligations
arising from this contract or which are in conjunction with the conclusion or
execution of this contract.
Section 12
Continued use of the name "Oeser"
The SELLERS grant to the PURCHASER herewith the unrestricted, irrevocable and
perpetual right to continue to use the name "Oeser" and the designation
"Oeserwerk" for any and all operational purposes, to include use in the company
name and/or logo of the company, as well as to designate products.
Section 13
Right to withdrawal
1. The PURCHASER is entitled to withdraw from this contract if it has
itself observed the contract and if the conditions as per Section 2,
Paragraph 2, Letter d) have not been fulfilled by April 15, 1999, at
the latest.
2. The SELLERS are entitled to withdraw from this contract if they have
themselves observed the contract and if all conditions as per Section
2, Paragraph 2, Letters )4 to c), have not been satisfied by April 15,
1999.
3. The entitlement of a party to this contract to withdraw from the
contract lapses as soon as the condition which justifies the
entitlement to withdraw occurs.
Section 14
Prohibition of competition
1. Sellers Xx. Xxxxx Xxxxx Xxxxx and Xx. Xxxxx-Xxxxxx Xxxxx pledge that
they and the companies associated with them will not, within three
years from the present date, enter into competition, either direct or
indirect, with the COMPANY and will not either directly or indirectly -
found or participate in, provide advice to and/or provide support in
any other fashion to a company which is in competition with the
COMPANY's current business operations. This prohibition of competition
is limited geographically to the COMPANIES' current territory for its
business activities. Excepted from this are the holdings of sellers Xx.
Xxxxx Xxxxx Xxxxx and Xx. Xxxxx-Xxxxxx Xxxxx in companies traded on the
stock market in so far as the holdings do not exceed 2% of the capital
stock of that listed company and holdings in CFC.
2. If Xx. Xxxxx Xxxxx Xxxxx or Xx. Xxxxx-Xxxxxx Xxxxx violate the
foregoing prohibition of competition, then a contractual penalty in the
sum of DM 50,000.00 shall be paid for each instance of contravention.
In the event of ongoing infringement of the foregoing prohibition of
competition, each month or fraction thereof in which the infringement
incurs shall be deemed a separate instance of contravention. The
enforcement of claims for compensation of damages arising from the
violation of the contract or of the claim to fulfillment is not
affected hereby.
Section 15
Final terms
1. Annexes 2.4 through 7.4 to this contract are essential components in
the contract.
2. This contract is subject to German law.
3. All additions or amendments to this contract shall be valid only if
made in writing in so far as no other special form is required. This
also applies to the revocation of this written-form clause.
4. The costs for any notarization and registration for the execution of
this contract shall be borne by the PURCHASER. The SELLERS shall bear
the costs incurred due to the payment of the purchase price through a
notarial trust account. Otherwise the parties to the contract shall
themselves bear the costs which they incur. The COMPANY shall bear no
costs which would not have been incurred during the course of normal
business; the COMPANY shall in particular bear no costs which it would
not have also occurred without the preparation, the conclusion and the
conduct of this contract or a sales contract with another purchaser.
5. All declarations and notifications pursuant to this contract shall be
directed to the following addresses if the contract party affected has
not reported a new address by way of registered mail with advice of
delivery:
a) For the SELLERS, with effect for all SELLERS, who herewith
grant in this respect authorization for receipt to Xx.
Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx
Oeserwerk Xxxxx Xxxxx & Sohne KG
Xxxxxxxxxxx 00
00000 Xxxxxxxxx
b) For the PURCHASER and CFC:
CFC International Ltd.
Xxxxx X. Xxxxx, CEO
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
XXX
6. The place of performance and court of venue for all disputes is
Goppingen.
7. This contract supersedes all written and oral declarations given by the
parties to the contract in conjunction with the contract negotiations.
8. Should individual provisions of this contract be or become ineffective,
either in whole or in part, or should there be a gap in the contract,
then the validity of the remaining provisions shall not be affected. An
appropriate provision shall take the place of the ineffective provision
or to cover the gap which, in so far as this is legally possible, is as
close as possible to that which the parties to this contract desired or
which in accordance with the spirit and purpose of this contract would
have desired had they taken the point into account.
Stuttgart, March 19, 1999
------------------------------- -------------------------------
- Xx. Xxxxx Xxxxx Xxxxx - - Heinz-Xxxxxx Xxxxx -
------------------------------- -------------------------------
- Xxxxxxx Xxxxx - - Xxxxxx Xxxxx -
------------------------------- -------------------------------
- SESVENNA 20. - CFC International Inc.,
Vermogensverwaltungs GmbH, represented by Xxxxx X. Xxxxx
Munich, and Xxxxxx X. Xxxxxx -
represented by Xxxxx X. Xxxxx -
--------
1 Later references are to the "SESVENNA 20. Vermogensverwaltungs GmbH".
2 The paragraph number is not clearly indicated in the German version
provided to the translator.
3 There is no subparagraph "e)" present in the German version provided to the
translator.
4 No letter is specified in the German version provided to the translator.
