SHARE PURCHASE AGREEMENT
THIS
SHARE PURCHASE AGREEMENT
(this
“Agreement”),
dated
as of October 30, 2008 (the “Signing
Date”),
is
made and entered into by and among:
(A) ALGATEC
SOLAR AG,
a stock
corporation (Aktiengesellschaft)
organized under the laws of Germany, registered with the commercial register
(Handelsregister)
of the
local court (Amtsgericht)
of
Cottbus under registration number HRB 8146 CB (“Algatec”)
and
having its registered office (Sitz)
in
Röderland, Germany;
(B) XX.
XXXXXX XXXXXXX,
an
individual (“Xxxxxxx”),
born
on February 16, 1959, with address at Xxxxxxxxxxxx 00, 00000 Xxxxxxxxx OT
Xxxxxx, Germany;
(C) XX. XXXXXXX
JANK, an
individual (Jank”),
born
on May 20, 1970, with address at Xxxx Xxxxxxx 00, 00000 Xxxxxxxx, Xxxxxxx;
(D) XX.
XXXXXX XXXXX,
an
individual (“Malik”),
born
on December 20, 1960, with address at Xxxxxxxx-Xxxxxxxxxxxx 00, 00000
Xxxxxxx-Xxxxx, Xxxxxxx;
(E) XX. XXXXX
XXXXX,
an
individual (“Freud”),
with
address at Xxxxxxxxxxxxxxx 0, 00000 Xxxxxxxx, Xxxxxxx ;
(F) XX. XXXXXX
XXXXXXX, ESQ.,
individual (the “Trustee”),
born
on November 27, 1947, with address at Xxxxxxxxxxxxx Xxxxxxx 0, 00000 Xxxxxxxx,
Xxxxxxx, an attorney and counselor at law, acting as trustee for Xxxxxxx;
and
(G) ALGATEC
EQUITY PARTNERS, L.P.,
a United
States limited Partnership formed under the laws of the State of Delaware (the
“Partnership”),
with
an office located at 00 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxx Xxxx
00000.
Ruschke,
Jank, Malik and Freud are hereinafter sometimes collectively referred to as
the
“Management
Stockholders.”
The
Management Stockholders, the Trustee and the Partnership are hereinafter
sometimes individually referred to herein as a “Party”
and
collectively referred to herein as the “Parties.”
TABLE
OF CONTENTS
|
2
|
||
|
1.
|
Definitions
|
5
|
|
2.
|
Sale
of and Transfer of Subject Shares.
|
10
|
|
3.
|
Related
Agreements
|
12
|
|
4.
|
Consideration
for Subject Shares; Capital Contribution and Loan
|
12
|
|
5.
|
Representations
and Warranties of the Partnership
|
13
|
|
6.
|
Representations
and Warranties of the Trustee, Algatec and the Management
Stockholders
|
14
|
|
Information
|
20
|
|
|
8.
|
Conditions
to The Partnership’s Obligation to Purchase
|
21
|
RECITALS
As
a
material inducement for the Partnership to enter into this Agreement and to
consummate the transactions contemplated hereby, the Management Stockholders
make the following factual Recitals A. through P. below, each of which recitals
constitutes a representation and warranty of the Management Stockholders in
accordance with this Agreement and subject to the limitations and qualifications
set forth herein.
A. Algatec
is a
stock
corporation (Aktiengesellschaft)
organized under the laws of Germany, registered with the commercial register
(Handelsregister)
of the
local court (Amtsgericht)
of
Cottbus under registration number HRB 8146 CB and having its registered office
(Sitz)
in
Röderland, Germany. The articles of association of Algatec, as in effect on the
Signing Date, are attached as Exhibit
A/1
(the
“Algatec
Articles of Association”)
and
an, as of the Effective Date, current excerpt of Algatec’s commercial register
is attached to this Agreement as Exhibit
A/2.
B. As
of the
Signing Date, Algatec has a registered share capital in the amount of €50,000,
which is divided into 50,000 no par-value bearer shares (Inhaber/-Stückaktien)
each
representing a notional participation of EUR 1 (herein collectively the
“Algatec
Shares”
and
each an “Algatec
Share”).
C. The
Management Stockholders and the Trustee are the sole shareholders of Algatec
and
are the record and (except for the Trustee) beneficial owners of the Algatec
Shares, as follows:
|
Shareholder
|
Number
of Algatec Shares
|
%
of Registered Capital
|
||
|
Ruschke
|
10,000
|
20%
|
||
|
Jank
|
7,500
|
15%
|
||
|
Malik
|
3,000
|
6%
|
||
|
Freud
|
1,500
|
3%
|
||
|
Trustee
|
28,000
|
56%
|
D. As
of the
Signing Date, the Trustee holds the 56% of the registered Algatec Shares which
are held by him on behalf of Xxxxxxx.
E. As
of the
Signing Date, the supervisory board (Aufsichtsrat)
of
Algatec (the “Algatec
Supervisory Board”)
consists of three supervisory board members, namely Mr. Xxxxx Xxxxx, Mr. Hartmut
Suppert and the Trustee and the management board (Vorstand) of
Algatec (the “Algatec
Management Board”)
consists of Messrs. Ruschke, Jank and Malik, provided that the appointment
of
the members of the Algatec Management Board has not yet been registered in
Algatec’s commercial register.
F. As
of the
Signing Date, Trend
Capital GmbH & Co Algatec Solarwerke Xxxxxxxxxxx KG
is a
limited partnership (Kommanditgesellschaft)
organized under the laws of Germany, registered with the commercial register
(Handelsregister)
of the
local court (Amtsgericht)
of
Cottbus under registration number HRA 1686 CB (“Trend
Capital KG”)
and
having its registered office (Sitz)
in
Elsterwerda, Germany. The partnership agreement of Trend Capital KG, as in
effect on the Signing Date, is attached as Exhibit
F/1
and an,
as of the Signing Date, current excerpt of Trend Capital KG’s commercial
register is attached to this Agreement as Exhibit
F/2.
-
2
-
G. Trend
Capital KG is, as of the Signing Date, engaged in the business of manufacturing,
assembling and selling metallurgical crystalline silicon solar panels or modules
and other forms of solar panels or modules on an OEM and a non-OEM basis
throughout the world (the “Business”)
H. As
of the
Signing Date, (i) the sole limited partner (Kommanditist) of
Trend
Capital KG is N&S
Verwaltungs- und Beteiligungs GmbH,
a
limited liability company (Gesellschaft
mit beschränkter Haftung)
organized under the laws of Germany, registered with the commercial register
(Handelsregister)
of the
local court (Amtsgericht)
of
Gütersloh under registration number HRB 4421 (the “Trend
Capital Limited Partner”)
and
having its registered office (Sitz)
in
Gütersloh, Germany, and (ii) the sole general partners (Komplementäre)
of
Trend Capital KG are (x) Algatec
Solarwerke Xxxxxxxxxxx GmbH,
a
limited liability company (Gesellschaft
mit beschränkter
Haftung)
organized under the laws of Germany, registered with the commercial register
(Handelsregister)
of the
local court (Amtsgericht)
of
Cottbus under registration number HRB 7319 CB and having its registered office
(Sitz)
in
Elsterwerda, Germany, and (y) Trend
Capital Unternehmensberatung für Finanzen und Immobilien
GmbH
a
limited liability company (Gesellschaft
mit beschränkter Haftung)
organized under the laws of Germany, registered with the commercial register
(Handelsregister)
of the
local court (Amtsgericht)
of
Mainz under registration number HRB 8290 and having its registered office
(Sitz)
in
Mainz, Germany (such general partners collectively referred to herein as the
“Trend
Capital General Partners”);
I. As
of the
Signing Date, Algatec and the Trend Capital Limited Partner are party to a
Kaufvertrag
über den Erwerb eines Kommanditanteils (Purchase
Agreement for the Acquisition of a Limited Partner Interest) dated August 28,
2008 (deed-roll no. 671/2008 of notary Xx. Xxxxx Xxxxxxxx/Gütersloh), a copy of
which (together with an approval (Genehmigung)
of such
agreement by the Algatec Management Board) is
attached as Exhibit
I (the
“Trend
Capital Interest Purchase Agreement”),
pursuant to which the Trend Capital Limited Partner has agreed to sell and
transfer to Algatec all, and not less than all, of its limited partnership
interests in Trend Capital KG, namely an interest in the nominal amount of
€2,513,500 (the “Trend
Capital Limited Partner’s Interest”),
for
an aggregate purchase price in the amount of €4,881,219 (the “Trend
Capital Limited Partnership Purchase Price”);
which
Trend Capital Limited Partnership Purchase Price is payable in two installments,
namely:
(i) a
first
installment in the amount of €2,500,000 which is due and payable (as a result of
an additional delay for payment granted by the Trend Capital Limited Partner
to
Algatec in deviation from the terms of the Trend Capital Interest Purchase
Agreement) at the latest on October 31, 2008 (the “Trend
Capital First Installment”)
and
(ii) a
second
installment in the amount of €2,381,219 which is due and payable on February 29,
2008 (the “Trend
Capital Second Installment”).
J. The
Trend
Capital Limited Partner’s Interest represents 100% of all limited partners
interests in Trend Capital KG.
K. As
of the
Signing Date, Algatec has already paid to the Trend Capital Limited Partner
a
partial amount of the Trend Capital First Installment equal to € 1,100,000
(the “Trend
Capital First Installment Down-Payment”)
but
still owes the remainder in the amount of € 1,400,000 (the “Trend
Capital First Installment Outstanding Amount”).
As a
result, the in
rem transfer
of the Trend Capital Limited Partner’s Interest by the Trend Capital Limited
Partner to Algatec, which was under the Trend Capital Interest Purchase
Agreement made subject to the condition precedent of the full payment of the
Trend Capital First Installment has not yet occurred. The funds for the Trend
Capital First Installment Down-Payment were lent to Algatec (i) in an amount
of
€ 1,000,000 by Mr. Xxxxx Xxxxx (the “Simon
Loan”)
and
(ii) in an amount of € 100,000 by
Malik
(the “Malik
Loan”)
-
3
-
L. Following
receipt of the Trend Capital First Installment Outstanding Amount by the Trend
Capital Limited Partner, the transfer and assignment to Algatec of all, and
not
less than all, of the Trend Capital Limited Partner’s Interest, will become
effective and Algatec will become the sole limited partner of Trend Capital
KG.
In addition, subject to Algatec having become the sole limited partner of Trend
Capital KG as aforesaid, the Trend Capital General Partners will (pursuant
to
the agreements attached as Exhibit
D)
withdraw from Trend Capital KG.
M. As
a
result of consummation of the transactions contemplated by Paragraph
L
above,
following the transfer of the Trend Capital Limited Partner’s Interest to
Algatec and the withdrawal of the Trend Capital General Partners, all assets
and
liabilities pertaining to Business will be legally and validly transferred
to
Algatec by means of accrual (Anwachsung)
(the
transfer and assignment of the Trend Capital Limited Partner’s Interest to
Algatec, the withdrawal of the Trend Capital General Partners and the accrual
of
the Business to Algatec is herein collectively referred to as the “Business
Transfer”);
N. As
of the
Signing Date, Algatec (as purchaser) and GB
Grundbesitz Brandenburg GmbH
(as
seller) are party to a real estate purchase agreement dated October 23, 2008
(deed-roll no. 1290/2008 of notary Sabine Taugnitz/Riesa), a copy of
which is
attached as Exhibit
N (the
“Real
Estate Purchase Agreement”),
relating to the real estate set forth therein in Xxxxxx, Germany, (the
“Xxxxxx
Real Estate”).
Pursuant to the Real Estate Purchase Agreement, GB Grundbesitz Brandenburg
GmbH
has agreed to sell the Xxxxxx Real Estate to Algatec for a purchase price equal
to €530,000 (the “Real
Estate Purchase Price”),
which
is payable in twelve instalments (the first instalment being due on November
1,
2008 and any further instalment being due on the first day of the respective
following month), provided that the in
rem transfer
of ownership of the Xxxxxx Real Estate to Algatec shall become effective only
after full payment of the Real Estate Purchase Price by Algatec.
O. As
of the
Signing Date, Algatec is a party to a share purchase agreement dated October
28,
2008 (deed-roll no. 1304/2008 of notary Sabine Taugnitz/Riesa), a copy of
which is
attached as Exhibit
O,
relating
to the acquisition by Algatec of all of the issued and outstanding shares of
SOLAR
INVEST GMBH,
a
limited liability company (Gesellschaft
mit beschränkter Haftung)
organized under the laws of Germany, registered with the commercial register
(Handelsregister)
of the
local court (Amtsgericht)
of
Cottbus under registration number HRB 6628 CB (“Solar
Invest”).
As of
the Signing Date, the assignment of all shares in Solar Invest to Algatec has
not yet become effective, since the Trustee acted under such share purchase
agreement as unauthorized agent (Vertreter
ohne Vertretungsmacht) of
Xx.
Xxxxxx Xxxxx (holding one share in the nominal amount of €11,850 out of the
registered capital of Solar Invest in the total amount of €50,000 and being one
of the sellers under such share purchase agreement) and since Xx. Xxxxxx Xxxxx
has, as of the Signing Date, not yet approved of such agreement.
P. As
of the
Signing Date, (i) Algatec has placed a purchase order with KOMAX
GROUP AG
(“Komax”),
dated
[●], a true and complete copy of which has been furnished to the Partnership
for
the purchase of certain equipment (the “Komax
Purchase Order”),
and
(ii) is party to a Frame Contract No. ALG/2009, dated September 25, 2008 with
Q-CELLS
INTERNATIONAL GMBH
(“Q-Cells”),
a
true and complete copy of which has
been
furnished to the Partnership, for the sale of solar modules to Q-Cells (the
“Q-Cells
Agreement”).
Q. The
business of Algatec resulting from (i) the Business Transfer and (ii) the
transfer of the shares in Solar Invest is herein referred to as the
“Algatec
Business”.
R. Upon
the
terms and subject to the conditions set forth in this Agreement:
(a) the
Partnership is willing to acquire for an aggregate purchase price of
€ 24,500 such amount and number of Algatec Shares as shall represent
exactly forty-nine percent (49%) of the issued and outstanding share capital
of
Algatec (namely 46% from the Trustee (on behalf of Xxxxxxx) and 3% from Malik)
namely through (i) on or about October 30, 2008, an acquisition from the Trustee
of such amount and number of Algatec Shares as shall represent exactly 27.5%
of
the of the issued and outstanding share capital of Algatec for a purchase price
of €13,750 and (ii) on or about November 30, 2008, an acquisition from the
Trustee and Malik of such amount and number of Algatec Shares as shall represent
exactly 21.5% of the of the issued and outstanding share capital of Algatec
for
an aggregate purchase price of €10,750. The Trustee (on behalf of Xxxxxxx) and
Malik are willing to sell such amount and number of Algatec Shares to the
Partnership, and
-
4
-
(b) the
Partnership is willing to provide to Algatec an aggregate of at least €4,475,500
through (i) on or about October 30, 2008, a contribution by the Partnership
to
the capital reserves of Algatec in the amount of at least €2,475,000 (the
“Capital
Contribution Amount”) for
no
additional consideration and (ii) on or about November 30, 2008 a loan by the
Partnership to Algatec (the “Loan”)
in the
principal amount of at least €2,000,000 (bearing interest at a rate of 6% per
annum) (the “Loan
Amount”);
which
Loan Amount shall be due on the earlier to occur of (y) consummation of the
“Algatec
Financing”
(as
hereinafter defined), or (z) December 31, 2011. The Loan shall be evidenced
by
the agreement between the Partnership and Algatec dated the Signing Date in
the
form of Exhibit
R
annexed
hereto (the “Loan
Agreement”).
S. Algatec
shall use the proceeds of the Capital Contribution amount and the Loan Amount
only for the following purposes:
(a) the
proceeds from the Capital Contribution Amount shall be used to make the payment
of the Trend Capital First Installment Outstanding Amount and repay in full
the
Simon Loan and the Malik Loan; and
(b) the
proceeds from the Loan, together with other funds available to Algatec, in
order
to pay in full the balance of the Trend Capital Limited Partner’s Purchase Price
by prepayment of the Trend Capital Second Installment.
T. Contemporaneous
with the execution and delivery of this Agreement, Solar
Thin Films, Inc.,
a
United States Delaware corporation (“Solar
Thin”)
and
each of the Parties hereto are executing and delivering a Stock Exchange
Agreement in the form of Exhibit
T
annexed
hereto and made a part hereof (the “Stock
Exchange Agreement”),
pursuant to which, among other things, the Algatec Stockholders (as hereinafter
defined) have agreed (subject to the terms and conditions contained in such
Stock Exchange Agreement) to exchange 100% of the issued and outstanding share
capital of Algatec for 50,000 shares of Solar Thin “Series B-5 Preferred Stock”
of Solar Thin (as that term is defined in the Stock Exchange Agreement)
convertible into that number of shares of common stock of Solar Thin as shall
represent 60% of the “Fully-Diluted Common Stock” of Solar Thin (as that term is
defined in the Certificate of Designations of the Series B-5 Preferred Stock,
constituting Exhibit
A
to the
Stock Exchange Agreement);
NOW
THEREFORE,
based
upon the foregoing Recitals, the Parties hereto do each severally (and not
jointly) hereby agree as follows:
1. Definitions. In
this
Agreement, the following capitalized terms shall have the meanings set forth
below.
Accredited
Investor
- shall
have the meaning as defined in Section 5(d).
-
5
-
Affiliate
- shall
have the same meaning as is defined in Section 15 of the German Stock
Corporation Act (AktG).
Agreement –
shall
have the meaning as defined on the front page.
Algatec
-
shall
have the meaning as defined on the front page.
Algatec
Account
- shall
have the meaning as defined in Section 4(a)(ii).
Algatec
Articles of Association
- shall
have the meaning as defined in Recitals A.
Algatec
Business–
shall
have the meaning as defined in Recitals Q.
Algatec
Financing - shall
mean any form of senior secured debt or equity financing that contains terms
and
conditions that are acceptable to both the Partnership (acting through the
General Partner), and the Management Stockholders, pursuant to which up to
€36,500,000 (USD $50,000,000) shall be made available to Algatec to (A)
construct the Plant Addition, and (B) purchase the Equipment
Additions.
Algatec
Group
- shall
mean the collective reference to Algatec, Solar Invest and Trend Capital
KG.
Algatec
Management Board
- shall
have the meaning as defined in Recitals E.
Algatec
Share(s)
- shall
have the meaning as defined in Recitals B.
Algatec
Stockholders
- shall
mean the collective reference to the Management Stockholders, the Partnership
and any other Person owning shares of capital stock of Algatec as at the First
Closing Date.
Algatec
Supervisory Board
- shall
have the meaning as defined in Recitals E.
Audited
Financial Statements
- shall
have the meaning as defined in Section 6.III.(h).
Breach
- shall
have the meaning as defined in Section 10(b)(i).
Business
- shall
have the meaning as defined in Recitals G.
Business
Day
- shall
mean any day other than Saturday or Sunday or any other day when the banks
in
Frankfurt am Main, Germany, are not open for business.
Business
Transfer
- shall
have the meaning as defined in Recitals M.
Capital
Contribution Amount
- shall
have the meaning as defined in Recitals R.
Damages
- shall
have the meaning as defined in Section 10(b)(ii)(D).
Deductible
Amount
- shall
have the as meaning defined in Section 10(b)(ii)(B).
De
Minimis Amount
- shall
have the meaning as defined in Section 10(b)(ii)(B).
Drag-Along
Algatec Stockholder
- shall
have the as meaning defined in Section 9(g)(i).
Drag-Along
Notice
- shall
have the meaning as defined in Section 9(g)(i).
-
6
-
Drag-Along
Offer
- shall
have the meaning as defined in Section 9(g)(i).
Due
Diligence Information -
shall
have the meaning as defined in Section 5(e).
Environmental
Laws
- shall
have the meaning as defined in Section 6.III.(n).
Equipment
Additions
- shall
mean the collective reference to the metallurgical crystalline silicon cell
threading equipment manufactured by Komax, solar module laminating equipment
and
other fixed assets to be purchased by Algatec for installation in the Plant
Addition and having an estimated cost of €34,600,000 (USD
$47,400,000).
Financial
Statements
- shall
have the as meaning defined in Section 6.III.(h).
First
Closing
- shall
have the meaning as defined in Section 2.
First
Closing Conditions
- shall
have the meaning as defined in Section 2(a)(ii).
First
Closing Date
- shall
have the meaning as defined in Section 4(a).
First
Closing Share Purchase Price
- shall
have the meaning as defined in Section 4(a)(i).
First
Closing Subject Shares
- shall
have the meaning as defined in Section 2(a)(i).
FMV
Quote
- shall
have the meaning as defined in Section 9(i)
Freud
- shall
have the meaning as defined on the front page.
General
Partner
- shall
mean Algatec Management LLC, a Delaware limited liability company, acting in
its
capacity as the General Partner of the Partnership and owning five percent
(5%)
of the equity, profits and losses of the Partnership.
Hazardous
Materials
- shall
have the meaning as defined in Section 6.III.(n).
Highland
Group -
shall
mean the collective reference to The Xxxxx Family Stock Trust, Sage Management
LLC (“Sage”),
Xxxxx
Xxxxxxxxx and their respective Affiliates and business associates.
Initiating
Algatec Stockholders
- shall
have the meaning as defined in Section 9(g)(i).
Intellectual
Property
- shall
have the meaning as defined in Section 6.III.(k).
Jank
- shall
have the meaning as defined on the front page.
Komax
- shall
have the meaning as defined in Recitals P.
Komax
Purchase Order
- shall
have the meaning as defined in Recitals P.
Liens
- shall
have the meaning as defined in Section 6.III.(a).
Limited
Partners
- shall
mean those Persons who shall execute the Partnership Agreement in their
capacities as limited partners of the Partnership, which Persons shall include
the Highland Group.
Liquidity
Event
- shall
have the meaning as defined in Section 9(d).
-
7
-
Loan
- shall
have the meaning as defined in Recitals R.(b).
Loan
Agreement
- shall
have the meaning as defined in Recitals R.(b).
Loan
Amount
- shall
have the meaning as defined in Recitals (R.(b)).
Major
Transaction
- shall
have the meaning as defined in Section 9(b).
Malik
- shall
have the same meaning as defined on the front page.
Malik
Account
- shall
have the meaning as defined in Section 4(b)(i).
Malik
Loan
- shall
have the meaning as defined in Recitals (K.).
Management
Stockholders Employment Agreements
- shall
have the meaning as defined in Section 8(b)(v).
Material
Adverse Effect -
shall
mean any material adverse effect on the business, operations, assets, financial
condition or prospects of the Algatec Group, when taken as a consolidated whole,
or on the transactions contemplated hereby or by the agreements or instruments
to be entered into in connection herewith, provided,
however, that
none
of the following shall be deemed a Material Adverse Effect (or considered in
determining whether a Material Adverse Effect has occurred): (i) events or
changes in general economic conditions and in particular the development of
the
financial and credit markets, (ii) events or changes generally affecting
companies in the industries in which the Algatec Group operates, (iii) changes
in legislation and the regulatory environment, and (iv) developments, changes
or
disruptions attributable (wholly or in part) to the announcement of this
Agreement or the transactions contemplated hereby or to any action by the
Partnership or Solar Thin.
Material
Contracts
- shall
have the meaning as defined in Section 6.III.(r).
Offered
Shares
- shall
have the meaning as defined in Section 9(e).
Offerees
- shall
have the meaning as defined in Section 9(e).
Partnership
- shall
have the meaning as defined on the front page.
Party
- shall
have the meaning as defined on the front page.
Parties
- shall
have the meaning as defined on the front page.
Permits
- shall
have the meaning as defined in Section 6.III.(m).
Permitted
Transfer - shall
mean the Transfer by (i) the Trustee of Algatec Shares to any Management
Stockholder, (ii) any Management Stockholder of Algatec Shares to his spouse,
children or trust for the benefit of any of such Persons, or a legal Person
which is ultimately directly or indirectly controlled by all or some of the
Management Stockholders, or (iii) a Transfer by the Partnership of any of the
Subject Shares to any Limited Partner(s) or the General Partner of the
Partnership or their Affiliates; provided, that, and as long as (A) the General
Partner or such Affiliate is ultimately directly or indirectly controlled by
Xxxxxx X. Xxxxx or Xxxxx Xxxxx, and (B) until the occurrence of the
transactions contemplated by the Stock Exchange Agreement or another Liquidity
Event, the voting of any Subject Shares transferred to any Limited Partner
or
his or its Affiliate shall remain vested in Xxxxxx X. Xxxxx or Xxxxx Xxxxx
and
can be exercised by them in their sole discretion; and provided further, that,
in each case, the applicable transferee(s) shall execute a document reasonably
satisfactory to the Management Stockholders and the Partnership agreeing to
be
bound by all of the terms and conditions of Section 9 of this
Agreement.
-
8
-
Person
-
shall
mean any individual, corporation, limited liability company, partnership,
association, trust or other entity, government agency or
organization.
Proposed
Transferee
- shall
have the meaning as defined in Section 9(e).
Xxxxxx
Real Estate
- shall
have the meaning as defined in Recitals N.
Purchaser
- shall
have the meaning as defined in 9(f)(ii).
Q-Cells
- shall
have the meaning as defined in Recitals P.
Q-Cells
Agreement
- shall
have the meaning as defined in Recitals P.
Real
Estate Purchase Agreement
- shall
have the meaning as defined in Recitals N.
Real
Estate Purchase Price
- shall
have the meaning as defined in Recitals X.
Xxxxxxx
-
shall
have the meaning as defined on the front page.
Second
Closing
- shall
have the meaning as defined in Section 2.
Second
Closing Conditions
- shall
have the meaning as defined in Section 2(b)(ii).
Second
Closing Date
- shall
have the meaning as defined in Section 4(b).
Second
Closing Subject Shares
- shall
have the meaning as defined in Section 2(b)(ii).
Selling
Party
- shall
have the meaning as defined in Section 9(f)(i).
Simon
Loan
- shall
have the meaning as defined in Recitals K.
Solar
Invest
- shall
have the meaning as defined in Recitals O.
Solar
Thin
- shall
have the meaning as defined in Recitals T.
Stock
Exchange Agreement
- shall
have the meaning as defined in Recitals T.
Subject
Shares
- shall
mean the First Closing Subject Shares and the Second Closing Subject Shares
collectively, representing such amount and number of Algatec Shares sold to
the
Partnership under this Agreement as shall represent exactly forty-nine percent
(49%) of the issued and outstanding share capital of Algatec, after
giving
effect to (i) such purchase by the Partnership, and (ii) the potential issuance
of any additional Algatec Shares under any options, warrants or other rights
to
purchase Algatec Shares or any other loans (but excluding the Loan), preferred
stock or other securities convertible into or exchangeable for Algatec Shares,
that are or may be outstanding as at the First Closing Date or the Second
Closing Date.
Subsidiary
-
shall
mean any Person, a majority of the share capital or equity of which shall be
owned by another Person.
-
9
-
Tag-Along
Algatec Stockholder
- shall
have the meaning as defined in Section 9(f)(i).
Tag-Along
Notice
- shall
have the meaning as defined in Section 9(f)(i).
Third
Party
- shall
have the meaning as defined in Section 9(g)(i).
Trend
Capital First Installment
- shall
have the meaning as defined in Recitals I.
Trend
Capital First Installment Down-Payment
- shall
have the meaning as defined in Recitals K.
Trend
Capital First Installment Outstanding Amount
- shall
have the meaning as defined in Recitals K.
Trend
Capital Second Installment
- shall
have the meaning as defined Recitals I
Trend
Capital General Partners
- shall
have the meaning as defined in Recitals H.
Trend
Capital Interest Purchase Agreement
- shall
have the meaning as defined in Recitals I.
Trend
Capital KG
- shall
have the meaning as defined in Recitals F.
Trend
Capital Limited Partner
- shall
have the meaning as defined in Recitals H.
Trend
Capital Limited Partner`s Interest
- shall
have the meaning as defined in Recitals I.
Trend
Capital Limited Partnership Purchase Price
- shall
have the meaning as defined in Recitals I.
Trustee
-
shall
have the meaning as defined on the front page.
Trustee
Account
- shall
have the meaning as defined in Section 4(a)(i).
Unaudited
Financial Statements
- shall
have the meaning as defined in Section 6.III.(h).
2. Sale
of and Transfer of Subject Shares.
The
Subject Shares shall be transferred to the Partnership in two (2) separate
closings; namely, a First Closing to be held on the First Closing Date and
a
Second Closing to be held on the Second Closing Date (as those terms are defined
in Section 4 below), as follows:
a. Sale
and Assignment of First Closing Subject Shares.
Subject
to the terms and conditions set forth in this Agreement:
(i) The
Trustee hereby sells a total of thirteen thousand seven hundred and fifty
(13,750) Algatec Shares representing 27.5% of the issued and outstanding share
capital of Algatec (the “First
Closing Subject Shares”),
with
any and all rights pertaining thereto (including any and all profits of Algatec
for the current fiscal year and for former fiscal years, to the extent such
profits have not yet been distributed) to the Partnership.
-
10
-
(ii) The
Trustee hereby assigns (abtreten)
the
First Closing Subject Shares to the Partnership, subject to the satisfaction
of
the following conditions precedent (aufschiebende
Bedingung)
(the
“First
Closing Conditions”)
that
(A) the
First
Closing Share Purchase Price (as defined below) has been credited to the Xxxxxxx
Account (as defined below), and
(B) the
Capital Contribution has been credited to the Algatec Account (as defined
below).
(iii) The
Partnership accepts the sale and assignment set forth under (i) and
(ii).
(iv) Upon
satisfaction of the First Closing Conditions, the Trustee shall confirm such
satisfaction to the Partnership in writing and deliver (or cause Algatec to
deliver) to the Partnership a share certificate evidencing the Partnership’s
ownership of the First Closing Subject Shares.
b. Sale
and Assignment of Second Closing Subject Shares.
Subject
to the terms and conditions set forth in this Agreement:
(i) The
Trustee hereby sells nine thousand two hundred and fifty (9,250) Algatec Shares
and Malik hereby sells one thousand five hundred (1,500) Algatec Shares,
representing in the aggregate 21.5% of the issued and outstanding share capital
of Algatec (such Subject Shares collectively the “Second
Closing Subject Shares”),
in
each case with any and all rights pertaining thereto (including any and all
profits of Algatec for the current fiscal year and for former fiscal years,
to
the extent such profits have not yet been distributed) to the Partnership.
(ii) Each
of
the Trustee and Malik hereby assign (abtreten)
the
respective Second Closing Subject Shares sold by them to the Partnership, in
each case subject to the satisfaction of the following conditions precedent
(aufschiebende
Bedingung)
(the
“Second
Closing Conditions”)
that
(A) the
First
Closing Conditions have been satisfied,
(B) the
Second Closing Share Purchase Price (as defined below) has been credited to
the
Xxxxxxx Account (as defined below) and the Malik Account as set forth below,
and
(B) the
Loan
Amount has been credited to the Algatec Account (as defined below).
(iii) The
Partnership accepts the sale and assignment set forth under (i) and
(ii).
(iv) Upon
satisfaction of the Second Closing Conditions, the Trustee and Malik (each
with
respect to the portion of the Second Closing Subject Shares sold by him) shall
confirm such satisfaction to the Partnership in writing and deliver (or cause
Algatec to deliver) to the Partnership a share certificate evidencing the
Partnership’s ownership of the Second Closing Subject Shares.
c. Authorization
and Direction for Sale and Transfer.
Algatec’s shareholders’ meeting has authorized the sale and assignment of the
Subject Shares in accordance with the applicable provisions of the Algatec
Articles of Association. A copy of the shareholders’ meeting’s resolution is
attached as Exhibit
2c./1
Xxxxxxx,
by signing this Agreement, expressly authorizes and instructs the Trustee to
sell and transfer those of the Subject Shares which are being sold under this
Agreement by the Trustee to the Partnership. Moreover, the Management
Stockholders have delivered to the Partnership a document executed by Xxxxx
Xxxxx and Xxxxxxx in the form annexed hereto as Exhibit
2c./2
and made
a part hereof.
-
11
-
d. Waiver
of Closing Conditions.
The
Management Stockholders shall be entitled to waive each and part of each of
the
First Closing Conditions and the Second Closing Conditions. The effect of a
waiver shall be limited to eliminating the need that the respective condition
be
satisfied for the assignment of the respective Subject Shares to become
effective but shall nor limit or prejudice the rights or claims that the
Management Stockholders may have with respect to the circumstances relating
to
such non-satisfaction.
e. Non-satisfaction
of Closing Conditions.
(i) In
the
event that the First Closing Conditions have not been satisfied by the
Partnership (or waived by the Management Stockholders), within three (3)
Business Days following the First Closing Date, the Management Stockholders
may
withdraw from this Agreement by giving written notice to the Partnership. In
the
event of such a withdrawal, this Agreement shall terminate and neither the
Management Stockholders nor the Partnership shall have any obligation or incur
any liability towards the respective other Party, except that Section 11 and
12
of this Agreement shall survive and remain in full force and effect.
(ii) In
the
event that the Second Closing Conditions have not been satisfied by the
Partnership (or waived by the Management Stockholders) within three (3) Business
Days following the Second Closing Date, the Management Stockholders may withdraw
from the sale of the Second Closing Subject Shares by giving written notice
to
the Partnership. In the event of such a withdrawal, the provisions relating
to
the sale and transfer of the Second Closing Subject Shares shall terminate
and
neither the Management Stockholders nor the Partnership shall have any
obligation or incur any liability towards the respective other Party with
respect to the Loan or the Second Closing Subject Shares. The remainder of
this
Agreement shall survive and remain in full force and effect.
3. Related
Agreements
Concurrently
with the execution of this Agreement, the Loan Agreement and the Stock Exchange
Agreement are being entered into by the respective parties thereto.
4. Consideration
for Subject Shares; Capital Contribution and Loan
a. First
Closing.
Unless
such time and date shall be extended by mutual agreement of the Partnership
and
the Management Stockholders, on or before 5:00 p.m. (CET time) on October 31,
2008 (the “First
Closing Date”)
the
Partnership shall pay (or cause to be paid) by wire transfer of immediately
available funds, free of bank and other charges, to be received (Wertstellung)
at such
time and date,,
(i) as
consideration for the sale and assignment of the First Closing Subject Shares,
an amount equal to €13,750 (the “First
Closing Share Purchase Price”)
to the
account of the Trustee in accordance with the wire instructions set forth in
Exhibit
4.(a)
(the
“Trustee
Account”);
and
(ii) the
Capital Contribution Amount (i.e.,
€2,475,000) to the account of Algatec in accordance with the wire instructions
set forth in Exhibit
4.(a)
(the
“Algatec
Account”).
-
12
-
b. Second
Closing.
Unless
such time and date shall be extended by mutual agreement of the Partnership
and
Algatec, on or before 5:00 p.m. (CET) on November 30, 2008 (the “Second
Closing Date”),
the
Partnership shall pay (or cause to be paid) by wire transfer of immediately
available funds, free of bank and other charges, to be received (Wertstellung)
the
latest at such time and date
(i) as
consideration for the sale and assignment of the Second Closing Subject Shares
an amount equal to €9,250 to the Trustee Account and an amount equal to €1,500
to the account of Malik set forth in Exhibit
4.(a)
(the
“Malik
Account”)
(such
amounts herein collectively the “First
Closing Share Purchase Price”);
and
(ii) the
Loan
Amount (i.e.,
€2,000,000) to the Algatec Account.
c. Funds.
Funds to
be wired by the Partnership in accordance with this Section 4 may be wired
in
United States Dollars on each of the First Closing Date and the Second Closing
Date. Such funds may be wired from the attorneys’ client trust account of
Xxxxxxx Xxxx LLP, counsel to the Partnership at any time on or before the
expiration of the First Closing Date and the Second Closing Date. Unless
otherwise agreed by Algatec, at the First Closing, the Partnership shall cause
to be wired the aggregate sum of USD $3,200,000 on the First Closing Date,
and
USD $2,800,000 on the Second Closing Date; provided, that in no event shall
the
funds received (after conversion at the applicable exchange rate) be less than
the EURO amounts set forth in Section 4a and Section 4b above.
5. Representations
and Warranties of the Partnership.
The
Partnership represents and warrants to the Management Stockholders in the form
of an independent promise of guarantee (selbständiges
Garantieversprechen) within
the meaning of Section 311 of the German Civil Code (BGB)
that
the following statements are true and correct as of the Signing Date, the First
Closing Date and the Second Closing Date, unless it is specifically provided
for
that a representation shall be made as of only one or several of these dates
or
a different date or different dates or an additional date or additional dates,
in which case the representation shall be true and correct as of such different
date or dates or such additional date or dates:
a. Authorization.
The
Partnership has full power and authority to enter into this Agreement, the
Stock
Exchange Agreement and the Loan Agreement and to perform its obligations
hereunder and thereunder and each such agreement constitutes the valid and
legally binding obligations of the Partnership enforceable in accordance with
its terms.
b. Partnership
Structure.
Under
its agreement of limited partnership (“Partnership Agreement”), the General
Partner shall own, for an investment of USD $165,000, five percent (5%) of
the
capital, profits and losses of the Partnership and the Limited Partners shall
own, for an investment of USD $6,000,000, ninety five percent (95%) of the
capital, profits and losses of the Partnership. A list of the Affiliates of
the
General Partner and the names of the Limited Partners of the Partnership are
set
forth on Exhibit
5.(b);
which
Exhibit
5.(b)
shall be
updated at the First Closing and at the time of the Second Closing.
c. Investment
Purpose.
The
Partnership is purchasing the Subject Shares for its own account and not with
a
present view towards the public sale or distribution thereof; provided,
however,
that by
making the representations herein, the Partnership does not agree to hold any
of
the Subject Shares for any minimum or other specific term and reserves the
right
to dispose of the Subject Shares at any time to its General Partner or the
Limited Partners; provided,
that
at all
times any such transfers shall be permitted only if they are Permitted Transfers
and otherwise made in compliance with the terms of this
Agreement.
-
13
-
d. Accredited
Partnership Status.
The
Affiliates of the General Partner and each of the Limited Partners of the
Partnership is an “accredited investor” as that term is defined in Rule 501(a)
of Regulation D under the Securities Act (an “Accredited
Investor”).
e. Information.
The
Partnership and its advisors, if any, have had the opportunity to ask questions
to the management of the Algatec, Trend Capital KG and Solar Invest and have
been furnished with all information relating to their business, finances and
operations and information relating to the offer and sale of the Subject Shares
which have been requested by the Partnership or its advisors (the written and
oral information so provided to the Partnership herein referred to as the
“Due
Diligence Information”).
The
Partnership understands that its investment in the Subject Shares, the making
of
the Capital Contribution and the grant of the Loan involve a significant degree
of risk. The Partnership further represents that the Partnership’s decision to
enter into this Agreement has been based solely on the independent evaluation
of
the Partnership and its representatives.
f. Governmental
Review.
The
Partnership understands that no German or United States federal or state agency
or any other government or governmental agency has passed upon or made any
recommendation or endorsement of the Subject Shares or in respect of the Capital
Contribution and the grant of the Loan.
g. Investment
by Highland Group.
On the
First Closing Date, the Highland Group shall have invested $165,000 in the
General Partner and an additional USD $2,500,000 in the Partnership as Limited
Partners and upon the same terms and conditions as other Limited Partners of
the
Partnership. On the Signing Date, the Highland Group has, subject to the
satisfaction of the other terms and conditions of this Agreement, committed
to
make such investment.
h. Residency.
The
Partnership is a resident of the State of Delaware, United States of
America.
i. Algatec
Financing. The
Partnership and its Affiliates shall use their collective best efforts (but
without being legally obligated in any manner) to locate one or more acceptable
financing sources and to assist Algatec to consummate the Algatec Financing.
Except for the payment of brokerage fees and commissions to investment bankers
and finders fees to Persons who are legally entitled to receive the same,
neither the General Partner, the Limited Partners nor their Affiliates shall
be
entitled to compensation for introducing Algatec to any financing source. The
Partnership understands that Algatec and the Management Stockholders will not
be
liable towards any investment bankers or other Persons with respect to the
transactions contemplated under this Agreement, the Stock Exchange Agreement
and
the Loan Agreement or any search for financing source, except where they have
specifically agreed to the contrary in writing.
6. Representations
and Warranties of the Trustee, Algatec and the Management
Stockholders
I. By
the Trustee.
The
Trustee represents and warrants to the Partnership only that the Trustee is
the
legal owner of those of the Subject Shares which are being sold by him under
this Agreement to the Partnership. He is holding such shares for the sole
benefit of Xxxxxxx in accordance with a verbal trust agreement. The Trustee
makes no other representations or warranties under this Agreement or
otherwise.
II. By
Algatec.
Algatec
makes no representations or warranties under this Agreement or otherwise.
Algatec is party to this Agreement for information purposes
only.
-
14
-
III. By
the Management Stockholders
Subject
to the limitations, qualifications and disclosures set forth in this Agreement
and its Exhibits and the disclosures in the Due Diligence Information, the
Management Stockholders severally (not jointly and severally) represent and
warrant to the Partnership in the form of an independent promise of guarantee
(selbständiges
Garantieversprechen) within
the meaning of Section 311 of the German Civil Code (BGB)
that
the following statements are true and correct on each of the Signing Date,
the
First Closing Date and the Second Closing Date, unless it is specifically
provided for that a representation shall be made as of only one or several
of
these dates or a different date or different dates or an additional date or
additional dates, in which case the representation shall be true and correct
as
of such different date or dates or such additional date or dates.
For
the
purposes of this Agreement, “to the knowledge of the Management Stockholders”
(or similar expressions) means the actual knowledge (positive
Kenntnis),
after
due inquiry, of the Management Stockholders. Unless contrary information is
furnished by the Management Stockholders prior to the First Closing Date or
the
Second Closing Date, as applicable, the representations and warranties that
are
made subject “to the knowledge of the Management Stockholders” shall be true and
correct as of the Signing Date and on each of the First Closing Date and the
Second Closing Date.
a. Ownership
of the Subject Shares. The
Trustee is the legal owner of those of the Subject Shares which are being sold
by him under this Agreement to the Partnership. He is holding such shares for
the sole benefit of Xxxxxxx in accordance with a verbal trust agreement. Malik
is the sole legal and beneficial owner of those of the Subject Shares which
are
being sold by him under this Agreement to the Partnership. The Subject Shares
are transferred to the Partnership free and clear of any of any lien, claim,
mortgage, charge, restriction, pledge, security interest, option, lease or
sublease, claim, right of any third Party, easement, encroachment or encumbrance
or any other right or adverse interest (“Liens”).
b. Organization
and Qualification.
Algatec
is a corporation and Solar Invest is a limited liability company, validly
existing under the laws of Germany, with full power and authority (corporate
and
other) to own, lease, use and operate its properties and to carry on its
business as and where now owned, leased, used, operated and conducted. Algatec
and Solar Invest are each duly qualified as a foreign corporation/limited
liability company to do business and in good standing in every jurisdiction
in
which their ownership or use of property or the nature of the business conducted
by them makes such qualification necessary except where the failure to be so
qualified or in good standing would not have a Material Adverse
Effect.
c. Subsidiaries.
Algatec
has no Subsidiaries, except, as of the Second Closing Date, for Solar Invest.
Solar Invest will be, as of the Second Closing Date, a wholly-owned subsidiary
of Algatec. The shares held by Algatec in Solar Invest as of the Second Closing
Date will be owned free and clear of any Liens.
d. Authorization;
Enforcement.
The
Trustee, each of the Management Stockholders and Algatec have all requisite
corporate (or other) power and authority, to enter into and perform and/or
deliver this Agreement and the Loan Agreement and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the Loan Agreement by Algatec and the consummation of the transactions
contemplated thereby have been duly authorized by the Algatec Management Board
and by all of the Management Stockholders. This Agreement has been duly executed
and delivered by each of the Trustee, Algatec and each of the each of the
Management Stockholders. This Agreement and the Loan Agreement constitutes,
a
legal, valid and binding obligation of the Trustee, the Management Stockholders
and Algatec where they are party to the respective agreement, enforceable
against each of them in accordance with their terms.
-
15
-
e. Issuance
of Subject Shares.
The
Subject Shares are duly authorized, validly issued, fully paid and
non-assessable, and free from all Liens and are not subject to preemptive rights
or other similar rights of shareholders of Algatec and will not impose personal
liability upon the holder thereof.
f. No
Conflicts.
The
execution, delivery and performance of this Agreement and the Loan Agreement
by
those of the Trustee, the Management Stockholders and Algatec who are party
to
the respective agreement and the consummation of the transactions contemplated
hereby and thereby will not (i) conflict with or result in a violation of any
provision of the Algatec Articles of Association, or (ii), to the knowledge
of
the Management Stockholders, violate or conflict with, or result in a breach
of
any provision of, or constitute a default (or an event which with notice or
lapse of time or both could become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any agreement
or instrument to which Algatec, Trend Capital KG or Solar Invest is a Party
or
is otherwise bound or is a beneficiary, or (iii) to the knowledge of the
Management Stockholders, result in a violation of any law, rule, regulation,
order, judgment or decree (including federal, state and foreign securities
laws
and regulations and regulations of any self-regulatory organizations to which
Algatec or Solar Invest or their its securities is subject) applicable to
Algatec, Trend Capital KG or Solar Invest or by which any property or asset
of
any of Algatec, Trend Capital KG or Solar Invest is bound or affected (except
for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect). None of Algatec, Trend Capital KG or Solar
Invest is in violation of its articles of association and, to the knowledge
of
the Management Stockholders, none of them is in default (and no event has
occurred which with notice or lapse of time or both could put the any of them
in
default) under, and, to the knowledge of the Management Stockholders, none
of
Algatec, Trend Capital KG and Solar Invest have taken any action or failed
to
take any action that would give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to
which
any of them is a Party or by which any property or assets of any of them is
bound or affected, except for possible defaults as would not, individually
or in
the aggregate, have a Material Adverse Effect. To the knowledge of the
Management Stockholders, the businesses of Algatec, Trend Capital KG and Solar
Invest are not being conducted in violation of any law, ordinance or regulation
of any governmental entity material to the business of such entity, except
where
violation thereof would not reasonably be expected to have a Material Adverse
Effect. Except as specifically contemplated by this Agreement and as required
under any applicable laws of the Federal Republic of Germany, none of the
Trustee, the Management Stockholders, Algatec or Solar Invest is required to
obtain any consent, authorization or order of, or make any filing or
registration with, any court, governmental agency, regulatory agency, self
regulatory organization or stock market, in order for the execution, delivery
or
performance of any of its obligations under this Agreement and the Loan
Agreement in accordance with the terms hereof or thereof, or sell the Subject
Shares.
g. Accuracy
of Recital Representations and Warranties. All
of
the statements of fact contained in the Recitals A. through P. are and will
be
true and accurate as of each of (i) the Signing Date, (ii) subject to
consummation at the First Closing of the transactions contemplated by Section
3
and Section 4 of this Agreement, as at the First Closing Date, and (iii) subject
to consummation at the Second Closing of the transactions contemplated by
Section 3 and Section 4 of this Agreement, as at the Second Closing
Date.
h. Financial
Information.
Prior
to the Signing Date, the Partnership has been furnished with the balance sheets
and statements of operations of Algatec, Solar Invest and Trend Capital KG
as at
December 31, 2006 and December 31, 2007, and for the respective fiscal years
then ended (the “Audited
Financial Statements”)
and
balance sheets and statements of operations of Algatec, Solar Invest and Trend
Capital KG as at September 30, 2008, and for the nine month period then ended
(the “Unaudited
Financial Statements”
and
together with the Audited Financial Statements,” the “Financial
Statements”)
which
are attached hereto as Exhibit 6.III.(h).
The
Audited Financial Statements and, to the knowledge of the Management
Stockholders, the Unaudited Financial Statements fairly represent in all
material respects in accordance with German GAAP the financial position of
the
respective entity as at such dates and the results of its operations for the
periods then ended. The
Audited Financial Statements and, to the knowledge of the Management
Stockholders, the Unaudited Financial Statements were prepared in all material
respects, in accordance with German GAAP applied on a consistent basis with
prior periods, except that the Unaudited Financial Statements may not include
all notes normally included under such generally accepted accounting principles.
To the knowledge of the Management Stockholders, the books of account and other
financial records of Algatec,
Solar Invest and Trend Capital KG are
complete and correct in all material respects and are maintained in accordance
with good business and accounting practices.
-
16
-
i. Absence
of Certain Changes.
Since
September 30, 2008 and unless otherwise disclosed by the Management Stockholders
to the Partnership between the First Closing Date and the Second Closing Date,
there has been no change, event or development in the assets, liabilities,
business, properties, operations, financial condition, results of operations
or
prospects of the Algatec Group, when taken as a consolidated whole which could
reasonably be excepted to have a Material Adverse Effect.
j. Absence
of Litigation.
Except
as set forth in Exhibit 6.III.(j)
unless
otherwise disclosed by the Management Stockholders prior to the Second Closing
Date, there is no action, suit, claim, proceeding, inquiry or investigation
before or by any court, public board, government agency, self-regulatory
organization or body pending or, to the knowledge of the Management
Stockholders, threatened against or affecting any of Algatec, Solar Invest
or
Trend Capital KG, or affecting their respective officers or directors in their
capacity as such, that is reasonably to be expected to result in a Material
Adverse Effect. None of the Management Stockholders has knowledge of any facts
or circumstances which would reasonably be expected to give rise to any of
the
foregoing.
k. Patents,
Copyrights, Trademarks.
The
Algatec Group, when taken as a consolidated whole, owns or possesses the
requisite licenses or rights to use all material patents, patent applications,
patent rights, inventions, know-how, trade secrets, trademarks, trademark
applications, service marks, service names, trade names and copyrights
(“Intellectual
Property”)
necessary to enable it to conduct its business as now operated in all material
respects; there is, as of the Signing Date, no claim or action by any Person
pertaining to, or proceeding pending, or to the knowledge of any of the
Management Stockholders threatened, which challenges the right of the Algatec
Group with respect to any Intellectual Property necessary to enable it to
conduct its business as now operated (and, to the knowledge of the Management
Stockholders, as presently contemplated to be operated in the future); to the
knowledge of the Management Stockholders, neither the current and intended
products, services and processes of the Algatec Group infringe on any
Intellectual Property or other rights held by any Person; and none of the
Management Stockholders have knowledge of any facts or circumstances which
might
give rise to any of the foregoing. Xxxxxxx and all other members of the
Management Stockholders have, or as at the First Closing Date will have,
assigned and transferred to Algatec all, and not less than all, rights to any
Intellectual Property that is currently owned or registered in their name or
in
the names of any of their Affiliates, other than members of the Algatec
Group.
l. Tax
Status.
Each of
Algatec, Solar Invest and Trend Capital KG have made or filed all federal,
state
and foreign income and all other tax returns, reports and declarations required
by any jurisdiction to which it is subject when due and has paid all taxes
and
other governmental assessments and charges that are material in amount, shown
or
determined to be due on such returns, reports and declarations, when due, except
those being contested in good faith and has set aside on its Financial
Statements provisions reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by
the
taxing authority of any jurisdiction. None of Algatec, Solar Invest and Trend
Capital KG have executed a waiver with respect to the statute of limitations
relating to the assessment or collection of any tax. None of the Algatec, Solar
Invest and Trend Capital KG’s tax returns is presently being audited by any
taxing authority.
-
17
-
m. Permits;
Compliance.
Each of
Algatec, Solar Invest and Trend Capital KG are in possession of all franchises,
grants, authorizations, licenses, permits, consents, certificates, approvals
and
orders necessary to own, lease and operate its properties and to carry on its
business as it is now being conducted (collectively, the “Permits”),
except where the absence of a Permit would not reasonably be expected to result
in a Material Adverse Effect .
Since
September 30, 2008, unless otherwise disclosed by the Management Stockholders
between the First Closing Date and the Second Closing Date, there is no action
pending or, to the knowledge of the Management Stockholders, threatened
regarding suspension or cancellation of any of the Permits, except where such
suspension or cancellation would not reasonably be expected to result in a
Material Adverse Effect. To the knowledge of the Management Stockholders, none
of Algatec, Solar Invest and Trend Capital KG is in material conflict with,
or
in material default or violation of, any of the Permits, except for any such
conflicts, defaults or violations which, individually or in the aggregate,
would
not reasonably be expected to have a Material Adverse Effect. Since September
30, 2008m unless otherwise disclosed by the Management Stockholders between
the
First Closing Date and the Second Closing, none of Algatec, Solar Invest and
Trend Capital KG have received any notification with respect to possible
violations of applicable laws.
n. Environmental
Matters.
To the
knowledge of the Management Stockholders, there are, with respect to Algatec,
Solar Invest and Trend Capital KG, no past or present violations of
Environmental Laws (as defined below), releases of any material into the
environment, actions, activities, circumstances, conditions, events, incidents,
or contractual obligations which may give rise to any liability under any
environmental laws of Germany or of other countries in which Algatec, Solar
Invest and Trend Capital KG conduct business, and none of them has received
any
notice with respect to any of the foregoing, nor is there any action pending
or,
to the knowledge of the Management Stockholders, threatened in connection with
any of the foregoing. The term “Environmental
Laws”
means
all laws relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata), including, without limitation, laws relating
to
emissions, discharges, releases or threatened releases of chemicals, pollutants
contaminants, or toxic or hazardous substances or wastes (collectively,
“Hazardous
Materials”)
into
the environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials, as well as all authorizations, codes, decrees, demands
or
demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations issued, entered, promulgated or approved
thereunder. Other than those that are or were stored, used or disposed of in
compliance with applicable law, to the knowledge of the Management Stockholders,
no Hazardous Materials are contained on or about any real property currently
owned, leased or used by Algatec, Solar Invest and Trend Capital KG, and no
Hazardous Materials were released on or about any real property previously
owned, leased or used Algatec, Solar Invest and Trend Capital KG during the
period the property was owned, leased or used by such entity, except in the
normal course of their businesses. There are no underground storage tanks on
or
under any real property owned, leased or used by Algatec, Solar Invest and
Trend
Capital KG that are not in compliance with applicable law.
o. Title
to Property.
The
Algatec Group, when taken as a consolidated whole, has good and marketable
title
to all real property or
holds
under valid leases or other rights to use all real property, plants, machinery
and equipment necessary for the conduct of its business as presently
conducted,
and has
good and marketable title to all personal property owned by it which is material
to its business, in each case free and clear of all Liens and defects except
such as would not have a Material Adverse Effect. Any real property and
facilities held under lease by Algatec, Solar Invest or Trend Capital KG are
held by them under valid, subsisting and enforceable leases with such exceptions
as would not have a Material Adverse Effect.
-
18
-
p. Insurance.
Algatec, Solar Invest or Trend Capital KG are insured by insurers of recognized
financial responsibility against such losses and risks, including casualty
and
liability insurance, and in such amounts as the Management Stockholders believe
to be prudent and customary in the Algatec Business. None of the Management
Stockholders have any reason to believe that the Algatec, Solar Invest and
(prior to the Business Transfer) Trend Capital KG will not be able to renew
its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue such
businesses at a cost that would not have a Material Adverse Effect.
q. Solvency.
Algatec
(after giving effect to the transactions contemplated by this Agreement) and
Trend Capital KG are solvent (i.e.,
its
assets have a fair market value in excess of the amount required to pay its
probable liabilities on its existing debts as they become absolute and matured).
Each of Algatec and Trend Capital KG (after giving effect to the transactions
contemplated by this Agreement) has the ability to pay its debts from time
to
time incurred in connection therewith as such debts mature.
r. Material
Contracts.
Algatec
has furnished to the Partnership or its representatives true and complete copies
of all of the material contracts, agreements and purchase orders to which
Algatec, Solar Invest or Trend Capital KG is a party as of the Signing Date,
all
of which are listed on Schedule
6.III.(r)
hereto
(collectively, the “Material
Contracts”).
Unless otherwise disclosed by the Management Stockholders between the First
Closing Date and the Second Closing Date, all such Material Contracts, including
without limitation, the Q-Cells Agreement and the Komax Purchase Order are
in
full force and effect and no event has occurred, which with the passage of
time,
the giving of notice or both, would constitute a default or event of default
by
Algatec, Solar Invest or Trend Capital KG thereunder, or to the knowledge of
the
Management Stockholders, the other parties thereto.
s. Acknowledgment
Regarding Partnership’ Purchase of Securities.
The
Management Stockholders acknowledge and agree that the Partnership is acting
solely in the capacity of arm’s length purchaser with respect to this Agreement
and the transactions contemplated hereby. The Management Stockholders further
acknowledge that the Partnership is not acting as a financial advisor or
fiduciary of any of Algatec, Solar Invest or Trend Capital KG (or in any similar
capacity) with respect to this Agreement and the transactions contemplated
hereby and any statement made by the Partnership or any of its representatives
or agents in connection with this Agreement and the transactions contemplated
hereby is not advice or a recommendation and is merely incidental to the
Partnership’s purchase of theSubject Shares. The Management Stockholders further
represent to the Partnership that their decision to enter into this Agreement
has been based solely on their independent evaluation and that of their
representatives.
t. Budgets
and Forecasts.
Although the Management Stockholders (while not making any representation or
warranty in this respect) believe that the budgets and forecasts submitted
to
the Partnership with respect to potential revenues and earnings for fiscal
2008,
2009 and 2010 are reasonable and achievable (subject to consummation of the
Algatec Financing by the end of 2008), the Partnership recognizes that budgets
and forecasts are subject to changes or adverse events affecting the Algatec
Business, some of which may be beyond the control of Algatec and the Management
Stockholders. Accordingly, subject only to the representations warranties,
covenants and indemnities of Algatec and the Management Stockholders expressly
contained in this Agreement, the Partnership confirms that in deciding on the
acquisition of the Subject Shares, the making of the Capital Contribution and
the grant of the Loan it has not relied on nor will it make any claim against
the Management Stockholders the Trustee, Algatec, Solar Invest or Trend Capital
KG or any other person in respect of (i) any budget, forecast, estimate or
other
projection of any nature (in particular of projections of future revenues,
future results of operations, future cash flows, future financial condition
or
the future business operations (or any underlying components thereof), or (ii)
any other information with respect to the Algatec Business (in particular the
Due Diligence Information) made available to the Partnership or its advisers
prior to the Signing Date.
-
19
-
7. Information.
As
soon
as reasonably practical following the First Closing Date, the Management
Stockholders shall, to the extent legally permissible (including through their
representation on the Algatec Supervisory Board), apply their best efforts
to
procure that the Algatec Supervisory Board adopts rules of procedure for the
Algatec Management Board (such rules of procedure to remain in effect as long
as
the participation of the Partnership in the registered share capital of Algatec
does not fall short of 25.1%) pursuant to which inter
alia, the
following information shall be made available to the Algatec Supervisory
Board:
a. Financial
Information.
The
Algatec Management Board shall provide to the Algatec Supervisory Board (and
to
thereby to the Partnership’s representatives on the Algatec Supervisory
Board):
(i) within
one hundred twenty (120) days after the end of each of the fiscal years a
consolidated audited balance sheet for such fiscal year and the immediately
preceding fiscal year, a consolidated income statement for such fiscal year
and
the immediately preceding two fiscal years, a consolidated cash flow statement
for such fiscal year and the immediately preceding two fiscals year and a
consolidated shareholders’ equity statement for such fiscal year and the
immediately preceding two fiscals year, and
(ii) within
sixty (60) days after the end of each of the fiscal quarters (other than a
fiscal quarter which is also the end of the Company’s fiscal year) a
consolidated unaudited balance sheet for such fiscal quarter, a consolidated
income statement for such fiscal quarter and a consolidated cash flow statement
for such fiscal quarter, in each case all in accordance with German GAAP, and
each certified by the Chief Executive Officer and Chief Financial Officer as
fairly presenting, in all material respects, the financial condition of the
companies being reported on and their results of operations, subject to, in
the
case of unaudited financial statements, changes resulting from normal audit
adjustments.
All
of
the foregoing financial statements shall be in English.
b. Notice
of Default or Event of Default.
The
Algatec Management Board shall provide the Algatec Supervisory Board promptly,
and in any event within ten (10) Business Days after it becomes aware of the
existence of any breach, default or event of default under any Material
Contract, or that any Person has given notice or taken any action with respect
to a claimed default under any Material Contract, inform the Algatec Supervisory
Board thereof, specifying the nature and period of existence thereof and what
action the Algatec Management Board is taking or proposes to take with respect
thereto.
c. Notices
from Governmental Authorities.
The
Algatec Management Board shall provide the Algatec Supervisory Board promptly,
and in any event within three (3) Business Days of receipt thereof, copies
of
any notice from any governmental authority alleging a violation of any order,
ruling, statute or other law or regulation that could reasonably be expected
to
have a Material Adverse Effect.
d. Annual
Budgets. The
Algatec Management Board shall provide the Algatec Supervisory Board prior
to
the end of each fiscal year a budget for the immediately following fiscal year,
including financial projections and anticipated capital expenditures. Such
capital expenditure budget shall be subject to approval by the Algatec
Supervisory Board (and thereby including the Partnership’s representatives on
the Algatec Supervisory Board).
-
20
-
e. Requested
Information.
The
Algatec Management Board shall provide the Algatec Supervisory Board with
reasonable promptness, such other data and information relating to the business,
operations, affairs, financial condition, assets or properties of Algatec as
from time to time may be reasonably requested by the Algatec Supervisory
Board.
8. Conditions
to The Partnership’s Obligation to Purchase.
a. Conditions
to the First Closing and Second Closing.
The
obligation of the Partnership hereunder to (i) purchase the First Closing
Subject Shares, to pay the First Closing Share Purchase Price and to make the
Capital Contribution on the First Closing Date and (ii) to purchase the Second
Closing Subject Shares, to pay the Second Closing Share Purchase Price and
to
make the Loan on the Second Closing Date is subject to the satisfaction, at
or
before the First Closing Date or the Second Closing (as set forth below) of
each
of the following conditions, provided that these conditions are for the
Partnership’s sole benefit and may be waived by the Partnership at any time in
its sole discretion:
(i) The
representations and warranties of each of the Trustee and the Management
Stockholders (including those set forth in the Recitals) shall be true and
correct in all material respects (provided, however, that such qualification
shall only apply to representations or warranties not otherwise qualified by
materiality) as of the date as of which they speak.
(ii) No
litigation, statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by or
in
any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
b. Additional
Conditions to the Second Closing.
In
addition to the conditions set forth under para. a. above, the obligation of
the
Partnership hereunder to purchase the Second Closing Subject Shares, to pay
the
Second Closing Share Purchase Price and to make the Loan on the Second Closing
Date is subject to the satisfaction of each of the following additional
conditions, provided that these conditions are for the Partnership’s sole
benefit and may be waived by the Partnership at any time in its sole
discretion:
(i) On
or
before the Second Closing Date, no event shall have occurred which could
reasonably be expected to have a Material Adverse Effect.
(ii) On
or at
the latest within three (3) Business Days following the First Closing Date,
Algatec shall have used the proceeds of the Capital Contribution to acquire
all
of the Trend Capital Limited Partner’s Interest, the transactions contemplated
by each of Paragraphs
K, L and M
of the
Recitals shall have been consummated, and the Business Transfer shall have
occurred.
(iii) On
or at
the latest within three (3) Business Days following the First Closing Date,
Algatec shall have legally and validly acquired all of the outstanding equity
of
Solar Invest.
(iv) On
or at
the latest within five (5) Business Days following following the First Closing
Date, Algatec shall have paid the first installment of the Real Estate Purchase
Price.
-
21
-
(v) On
or
before the Second Closing Date, Algatec and each of Messrs. Ruschke, Jank,
Malik
and Freud shall have entered into five year employment agreements with Algatec
in form and content reasonably acceptable to the Partnership (the “Management
Stockholder Employment Agreements”).
Such
Management Stockholder Employment Agreements shall provide, among other things,
that Xx. Xxxxxxx will receive an annual salary of €180,000 and each of Messrs.
Malik, Jank and Freud will receive annual salaries of €100,000, subject to 5%
annual cost-of-living increases. In addition, such Management Stockholders
shall
be entitled to receive annual bonuses which in the aggregate shall equal 10%
of
the annual net income before interest and taxes of Algatec (“EBIT”)
for
each of the five years of their employment agreement, subject to an annual
“cap”
on such bonuses that will not exceed 100% of their annual salaries if annual
EBIT is €10.0 million or less, and 200% of their annual salaries if such annual
EBIT is more than €10.0 million. Each of the Management Stockholders shall also
agree, for a period equal to the greater of five years or the term of their
individual employment with Algatec, not to compete with the “business” of the
Company (defined as (i) the manufacture and sale of photovoltaic module
equipment of all types, (ii) the installation of turn-key module manufacturing
facilities of all types, (iii) the manufacture and sale of photovoltaic cells
or
modules of all types, and (iv) the installation and operation of power projects,
including the supplying of solar power electricity to private industry,
consumers or local or foreign governments and municipalities). Such Management
Stockholder Employment Agreements shall also provide for other customary terms
and conditions reasonably acceptable to the Partnership, including reimbursement
of expenses, use of an automobile and social security contributions being borne
by the employer.
(vi) On
or at
the latest within three (3) Business Days following the First Closing, the
Algatec Stockholders shall have resolve an amendment to the Algatec Articles
of
Association to the effect that the Algatec Supervisory Board is increased to
be
composed of six members and shall have applied for registration of such
amendment in Algatec’s commercial register and, subject to such amendment being
registered in Algatec’s commercial register, Mr. Xxxxx Xxxxx, Mr. Xxxxxxx
Suppert and the Trustee shall have resigned or been removed from the Algatec
Supervisory Board (unless one or several of them is designated as a
representative of the Partnership or the Management Stockholders in accordance
with this clause), and two (2) representatives of the Partnership (as designated
by the General Partner) and four (4) representatives designated by the
Management Stockholders shall be appointed to serve as the members of the
Algatec Supervisory Board (which board shall be increased to six members by
amendment to the Algatec Articles of Association).
(vii) On
or
immediately following the Second Closing Date, Algatec shall use the proceeds
of
the Loan, together with its available working capital to pay the Trend Capital
Second Installment and the entire Trend Capital Limited Partnership Purchase
Price.
9. Post-Closing
Covenants and Agreements. Each
of
the Partnership and the Management Stockholders do hereby covenant and agree
that subject to the consummation of the transactions to be performed on the
First Closing Date, until consummation of the transactions contemplated by
the
Stock Exchange Agreement, or consummation of another Liquidity Event (whichever
shall occur first):
(a) Algatec
Boards . As
long
as the participation of the Partnership or its transferees pursuant to a
Permitted Transfer in the registered share capital of Algatec does not fall
below 25.1%, the Partnership and the Management Stockholders (i) shall vote
all
their shares of Algatec capital stock at all regular and special (general or
extraordinary) meetings of the shareholders of Algatec that are called in whole
or in part to elect members of the Algatec Supervisory Board to elect two (2)
representatives of the Partnership to serve on the Algatec Supervisory Board
and
four (4) representatives of the Management Stockholders to serve on the Algatec
Supervisory Board; and (ii), to the extent legally permissible, shall instruct
their representatives on the Algatec Supervisory Board (ii) to elect four (4)
representatives of the Management Stockholders (or the Management Stockholders)
to serve on the Algatec Management Board.
-
22
-
(b) Major
Transactions. The
business and operations of Algatec shall be managed by the Algatec Management
Board. However, the Parties hereto do hereby agree that they shall, to the
extent legally permissible (including through their representation on the
Algatec Supervisory Board), cause the Algatec Supervisory Board to adopt rules
of procedure for the Algatec Management Board (Geschäftsordnung
für den Vorstand)
(such
rules of procedure to remain in effect as long as the participation of the
Partnership or its transferees pursuant to a Permitted Transfer in the
registered share capital of Algatec does not fall below 25.1%) pursuant to
which
the approval or consent of both the Algatec Supervisory Board and the
Partnership’s representatives on the Algatec Supervisory Board shall be required
for Algatec to engage in, or otherwise enter into any legal commitment for,
inter
alia any
the
following transactions (each, a “Major
Transaction”):
(i) entering
into any agreement or other commitment to consummate a Liquidity
Event;
(ii) amending
the terms of this Agreement, the Stock Exchange Agreement, the Loan Agreement
or
the Management Stockholders Employment Agreements;
(iii) entering
into any agreement to sell, encumber or subject to Lien of any material assets
and properties of the Algatec Group;
(iv) entering
into any agreement to sell or issue any additional Algatec Shares of capital
stock or other securities convertible into or exchangeable for Algatec Shares
of
capital stock;
(v) entering
into any agreement to merge Algatec with or into or consolidate with any other
corporation or other Person, that would not otherwise constitute a Liquidity
Event;
(vi) any
change the fundamental nature of the Algatec Business;
(vii) the
creation, incurrence, assumption, guarantee or otherwise becoming liable or
obligated with respect to any indebtedness in excess of Euro Five Million
(€5,000,000), or the making of any loan or advance to, or any investment in,
any
Person, except in each case in the ordinary course of business;
(viii) the
final
terms and conditions of the Algatec Financing;
(ix) entering
into any agreement commercial or financial with any Affiliate of a Management
Stockholder or the Partnership;
(x) adoption
of the annual budget and any material change in the annual budgets or approval
of any capital expenditure not included in the annual budget of over Euro Two
Million (€2,000,000);
(xi) the
acquisition by any member of the Algatec Group of the business, or a majority
of
the securities or assets of any other Person;
(xii) in
addition to the Algatec Financing, borrowing any other amounts exceeding Euro
Two Million (€2,000,000);
(xvi) initiating
or settlement out of court of any litigation involving an amount in excess
of
Euro Two Million (€2,000,000); or
-
23
-
(xiii) any
decision with respect to the winding up of the Algatec or any Subsidiary of
Algatec;
(d)
Liquidity
Event.
In
the
event that for any reason by March 31, 2009, or such other date as may be
mutually agreed upon by the Management Stockholders and the Partnership the
transactions contemplated by the Stock Exchange Agreement shall not have been
consummated, then and in such event, by not later than March 31, 2012 (provided
that by that time the participation of the Partnership or its transferees in
a
Permitted Transfer in the registered share capital of Algatec does not fall
below 25.1%), Algatec and the Algatec Stockholders shall undertake to consummate
a Liquidity Event. As used in this Agreement, a “Liquidity
Event”
shall
be defined to mean either:
(i)
a
sale
for cash or securities of Algatec on such terms and conditions as shall be
approved by the Partnership and by 50.1% of the shares of capital stock then
held by the Management Stockholders, or
(ii)
an
initial public offering of Algatec on such terms and conditions as shall be
approved by the Partnership and by 50.1% of the shares of capital stock held
the
by the Management Stockholders, or
(iii)
a
merger
of Algatec with and into any Person who is not an Affiliate of either the
Partnership or the Management Stockholders, all upon on such terms and
conditions as shall be approved by the Partnership and by 50.1% of the shares
of
capital stock the held by the Management Stockholders.
The
Algatec Stockholders hereby agree to use their collective best efforts to
consummate a Liquidity Event by March 31, 2012 (provided that by that time
the
participation of the Partnership or its transferees in a Permitted Transfer
in
the registered share capital of Algatec does not fall below 25.1%).
(e) Lock-up
and Voting. Prior
to
(and including) March 31, 2009, except for Permitted Transfers, no Algatec
Stockholder shall sell, transfer, assign, pledge, encumber or otherwise
hypothecate any of his or its Algatec Shares, including the Subject Shares,
without the unanimous approval of all Algatec Stockholders. For any sales,
transfers, assignments, pledges encumbrances or other disposals at any time
on
or after April 1, 2009, the provisions of Section 9(f) and 9(g) shall apply
and, in addition, for any such transactions on or after December 31, 2012,
Section 9(h) shall apply, and the other Algatec Stockholders shall
(including under the Algatec Articles of Association) approve of any such
transactions which are performed in compliance with such provisions. In
addition, at any time, to the extent legally required, all Algatec Stockholders
shall vote their Algatec Shares in such manner as required for the
implementation of any share transfers or share issuances required or agreed
upon
by any of the Parties hereto under the Stock Exchange Agreement and the Loan
Agreement.
(f) Right
of First Refusal. If
at any
time on or after April 1, 2009, an Algatec Stockholder desires to sell for
cash
or cash equivalents all or any portion of his or its Algatec Shares pursuant
to
a bona fide offer from a third party who is not an Affiliate (for the purposes
of this Section 9(f), the “Proposed
Transferee”),
such
selling Algatec Stockholder shall submit a written offer (the “Offer”)
to
sell such Algatec Shares (the “Offered
Shares”)
to all
other Algatec Stockholders (collectively, the “Offerees”)
on
terms and conditions, including price, no less favorable to the Offerees than
those on which the selling Algatec Stockholder proposes to sell such Offered
Shares to the Proposed Transferee. The Offer shall disclose the identity of
the
Proposed Transferee, the Offered Shares proposed to be sold, the total number
of
Algatec Shares owned by the selling Algatec Stockholder, the terms and
conditions, including price, of the proposed sale, and any other material facts
relating to the proposed sale. Notwithstanding the foregoing:
-
24
-
(i) if
the
selling Algatec Stockholder shall be a Management Stockholder, the right of
first refusal contained in this Section 9(f) and the Offered Shares shall first
be offered to the other Management Stockholders, on a pro rata basis, as
Offerees, and then to the Partnership or its partners to the extent that all
of
the Offered Shares are not purchased by the other Management Stockholders;
and
(ii) if
the
selling Algatec Stockholder shall be the Partnership or the General Partner
or
one or more Limited Partners, the right of first refusal contained in this
Section 9(f) and the Offered Shares shall first be offered to the Partnership
or
other partners (General Partner and Limited Partners) of the Partnership, on
a
pro rata basis, as Offerees, and then to the Management Stockholders on a
pro-rata basis, to the extent that all of the Offered Shares are not purchased
by the Partnership or the other partners of the Partnership.
Notwithstanding
the foregoing, the rights of refusal provided in this Section
9(f)
shall
not apply with respect to:
(i) the
transactions contemplated by the Stock Exchange Agreement;
(ii) the
occurrence of any Liquidity Event, or
(iii) any
redemption of Algatec Shares or sales of Algatec Shares by an Algatec
Stockholder to Algatec in a transaction approved by the Algatec Management
Board
and the Algatec Supervisory Board (including the Partnership’s representatives
on the Algatec Supervisory Board); or
(iv) any
Permitted Transfer; or
(v) any
sales
or issuances of Algatec Shares or other Algatec equity securities by
Algatec.
(g) Tag-Along
Rights.
The
provisions of this Section
9(g)
shall be
applicable only until such time as the transactions contemplated by the Stock
Exchange Agreement or a Liquidity Event shall have been
consummated.
(i) If
at any
time on or after April 1, 2009, any of the Algatec Stockholders, whether alone
or together by agreement, contract or understanding (for the purposes of this
Section
9(g)
(each a
“Selling
Party”)
wishes
to sell any Algatec Shares owned by it in a single transaction or series of
related transactions to any third party (other than to a permitted transferee
of
such Selling Party in connection with a Permitted Transfer or a transfer to
any
other Algatec Stockholder) (for the purposes of this Section 9(g), the
“Purchaser”),
and
the Selling Party has complied with all of the other requirements of this
Agreement, the Selling Party shall cause a written notice of the offer by the
Purchaser to purchase such shares (a “Tag-Along
Notice”)
to be
delivered to each of the other Algatec Stockholders (each a “Tag-Along
Algatec Stockholder”),
setting forth the price per share to be paid by the Purchaser, the identity
of
the Purchaser and the other principal terms and conditions of the Purchaser’s
offer to purchase such shares. Each Algatec Stockholder shall have the right
to
offer for sale to the Purchaser, as a condition of such sale by the Selling
Party, the same proportion of the shares then held by such Algatec Stockholder
as the proposed sale represents with respect to the total number of shares
that
the Selling Party owns or has the right to acquire pursuant to outstanding
options, warrants or convertible securities, at the same price per share and
on
the same terms and conditions as involved in such sale by the Selling Party.
Each Algatec Stockholder shall notify the Selling Party of his or its intention
to sell his or its shares pursuant to this Section 9(g) as soon as practicable
after receipt of the Tag-Along Notice, but in no event later than thirty (30)
days after receipt thereof.
-
25
-
(ii) In
the
event that any Algatec Stockholder elects to sell its pro rata portion to the
Purchaser, the Tag-Along Algatec Stockholders shall not be obligated to execute
and deliver any document which (A) requires such Tag-Along Algatec Stockholder
to make representations or warrants regarding any aspect whatsoever of the
business or prospects of Algatec and/or its Subsidiaries, (B) would subject
such
Tag-Along Algatec Stockholder to restrictive covenants, or (C) requires such
Tag-Along Algatec Stockholder to be obligated for any indemnification or other
obligations other than (so long as the Selling Party(s) do at least the same)
(1) the obligation to join on a pro-rata basis (but not on a joint and several
basis), based on its respective share of the aggregate proceeds paid by the
Purchaser (but only up to the amount of net proceeds actually received by such
Tag-Along Algatec Stockholder in the sale), in any indemnification that the
Selling Party(s) have agreed to, and (2) any such obligations that relate
specifically to a particular Algatec Stockholder such as indemnification with
respect to representations and warranties given by a Algatec Stockholder
regarding such Algatec Stockholder’s title to and ownership of shares.
(iii) The
Selling Party and each other Algatec Stockholder intending to sell shares
hereunder shall sell to the Purchaser all, or at the option of the Purchaser,
any part of the Shares proposed to be sold by them at not less than the price
per share and upon other terms and conditions, if any, not more favorable to
the
Purchaser than those set forth in the Tag-Along Notice; provided,
however,
that
any purchase of less than all of such shares by the Purchaser shall be made
from
the Selling Party and each other Algatec Stockholder intending to sell shares
hereunder pro rata based upon the number of shares then held by the Selling
Party and each such other Algatec Stockholder electing to sell to the Purchaser
(calculated on a fully diluted basis).
(h) Drag-Along
Rights. The
provisions of this Section
9(h)
shall be
applicable only until such time as the transactions contemplated by the Stock
Exchange Agreement or a Liquidity Event shall have been
consummated.
(i) If
at any
time on or after December 31, 2012, one or more Algatec Stockholders (for the
purposes of this Section
9(h),
the
“Initiating
Algatec Stockholders”)
owning
at least forty-five percent (45%) of the issued and outstanding share capital
of
Algatec shall receive a bona fide cash offer (a “Drag-Along
Offer”)
by a
third party who is not an Affiliate of Algatec or of any of the Algatec
Stockholders (for the purposes of this Section
9(h),
a
“Third
Party”)
to
acquire all of the then outstanding shares or all or substantially all of the
assets or businesses of Algatec (no matter how the transaction may be
structured), then and in such event the Initiating Algatec Stockholder(s) may
(subject to such Initiating Algatec Stockholder(s) having first complied with
Section 9(f))
require
each other Algatec Stockholder (each a “Drag-Along
Algatec Stockholder”)
to
sell to such Third Party all of the shares then held by such Algatec Stockholder
on terms not less favorable to such Algatec Stockholders than those applying
to
the Initiating Algatec Stockholder(s) or to vote their shares in favor of such
transaction if other than a sale of shares as provided below; provided,
however,
that:
the Drag-Along Algatec Stockholders shall not be obligated to execute and
deliver any document which (A) requires such Drag-Along Algatec Stockholders
to
make representations or warrants regarding any aspect whatsoever of the business
or prospects of Alhatec and/or its Subsidiaries, provided that such Drag-Along
Algatec Stockholders (so long as the Initiating Algatec Stockholders do at
least
the same), shall make representations and warranties to the effect that (x)
such
Drag-Along Algatec Stockholder is the legal and beneficial owner(s) of the
securities being sold in the sale, free and clear of all liens, claims, security
interests, restrictions, agreements of sale or other encumbrances (other than
any imposed by this Agreement, as amended and restated,) and (y) such Drag-Along
Algatec Stockholder has the capacity or power and authority to effect such
sale), (B) would subject such to
restrictive covenants, or (C) requires such Drag-Along Algatec Stockholder
to be
obligated for any indemnification or other obligations other than (so long
as
the Initiating Algatec Stockholders do at least the same) (1) the obligation
to
join on a pro-rata basis (but not on a joint and several basis), based on its
respective share of the aggregate proceeds paid by the purchaser in such sale
(but only up to the amount of net proceeds actually received by such Drag-Along
Algatec Stockholder in the sale), in any indemnification that the Initiating
Algatec Stockholders have agreed to, and (2) any such obligations that relate
specifically to a particular Algatec Stockholder such as indemnification with
respect to representations and warranties given by a Algatec Stockholder
regarding such Algatec Stockholder’s title to and ownership. Notwithstanding the
foregoing, in the event that the Initiating Algatec Stockholders elect to
exercise their rights under this Section
9(h),
such
Drag-Along Algatec Stockholder shall only be obligated under this Section
9(h),
if the
Drag Along Algatec Stockholder shall receive cash in such sale. If the
Initiating Algatec Stockholders elects to exercise their right to compel a
sale
pursuant to this Section
9(h),
the
Initiating Algatec Stockholders will cause a written notice of the Drag-Along
Offer (the “Drag-Along
Notice”)
to be
delivered to each of the other Algatec Stockholders, setting forth the aggregate
consideration, the identity of the Third Party and the other principal terms
and
conditions thereof.
-
26
-
(ii) The
Initiating Algatec Stockholders will have one hundred twenty (120) days from
the
date the Drag-Along Notice is given to the other Algatec Stockholders to
consummate the sale to the Third Party, at the price and on the terms
substantially similar to those set forth in such Drag-Along Notice, of all
of
the Shares subject to the Drag-Along Offer pursuant to Section
9(h).
If the
sale to the Third Party is not completed during such one hundred twenty (120)
day period, then the other Algatec Stockholders will be released from their
obligations with respect to such Drag-Along Notice (but not future Drag-Along
transactions).
(iii) Subject
to Section
9(h),
each
Algatec Stockholder agrees to cast all votes to which such Algatec Stockholder
is entitled in respect of its Shares, whether at any annual or special meeting,
by written consent or otherwise, in the same proportion as Shares are voted
by
the Initiating Algatec Stockholders to approve any transaction or series of
transactions in connection with which the Initiating Algatec Stockholders
exercise their rights in this Section
9(h)
(including, without limitation, any recapitalization, merger, consolidation,
reorganization or sale of all or substantially all of the assets of the
Company).
(i) Control
of General Partner and Permitted Transfer Undertaking.
Until
consummation of the transactions contemplated by the Stock Exchange Agreement
or
the occurrence of a Liquidity Event, whichever shall occur first: (A), without
the prior written consent of Management Stockholders owning at least 51% of
the
Algatec Shares held by all Management Stockholders, the ownership and control
of
the General Partner of the Partnership shall at all times remain directly or
indirectly vested in Xxxxxx X. Xxxxx or Xxxxx Xxxxx or their Affiliates, and
(B)
the Partnership hereby undertakes to procure that any transferee to which
Algatec Shares have been transferred pursuant to a Permitted Transfer agrees,
as
an undertaking for the benefit of the Management Stockholders, to vote all
such
shares in a manner as determined by either Messrs. Xxxxx or Xxxxx, in the
exercise of their sole discretion.
10. Indemnification.
a. Survival.
All
representations, warranties and covenants in this Agreement will survive the
First Closing Date and the Second Closing Date. The right to indemnification,
payment of Damages (as defined below) or other remedy based on such
representations, warranties and covenants will not be affected by any
investigation conducted with respect to, or any knowledge acquired (or capable
of being acquired) after the execution and delivery of this Agreement, with
respect to the accuracy or inaccuracy of or compliance with, any such
representation, warranty or covenant. The waiver of any condition based on
the
accuracy of any representation or warranty, or on the performance of or
compliance with any covenant, shall not affect the right to indemnification,
payment of Damages, or other remedy based on such representations, warranties
and covenants.
-
27
-
b. Indemnification
by Management Stockholders.
(i) Representations
and Warranties.
In the
event of a breach of any representation or warranty made by the Management
Stockholders in this Agreement (a “Breach”),
the
Management Stockholders shall severally (and not jointly and severally) put
the
Partnership or, at the Management Stockholders election, the respective member
of Algatec Group into the same position it would be in if the breach had not
occurred (Naturalrestitution)
and
if
and to the extent remediation in kind is not possible or has not been effected
by the Management Stockholders within a period of one month after a written
request for such remediation has been made by the Partnership, the Partnership
shall be entitled to request from the Management Stockholders compensation
in
cash (Schadensersatz
in Geld)
for any
Damages (as defined below) incurred by the Partnership or the Algatec Group
(such compensation to be payable at the Management Stockholders’ discretion to
the Algatec Group, except where the damage is solely incurred on the level
of
the Partnership); provided,
however,
that,
(A) the
present value of any benefits received by the Partnership or the Algatec Group
in connection with or as result of the breach (including, without limitation,
avoided losses, tax benefits and savings, and increases in the value of any
asset owned by the Algatec Group (Abzug
neu für Alt))
shall
be deducted for the purpose of computing the Losses (Vorteilsausgleich)
in
accordance with Section 252 of the German Civil Code (BGB),
(B) the
Management Shareholders shall not be liable for Breaches, and the Partnership
shall not be entitled to bring, any claim under or in connection with this
Agreement if and to the extent that: (i) the Partnership, or its representatives
on the Algatec Supervisory Board have caused or participated in causing
(verursacht
oder mitverursacht)
or
aggravated such Breach or any Damages resulting therefrom or failed to mitigate
Damages pursuant to Section 254 of the German Civil Code (BGB), (ii) the matter
underlying the Breach has been taken into account in the Financial Statements,
as a write-off (Abschreibung),
value
adjustment (Wertberichtigung),
liability (Verbindlichkeit)
or
provision (Rückstellung),
including general adjustments (e.g., Pauschalwertberichtigungen)
or
provisions made for the relevant risk category, (iii) the Damages are recovered
from a third party including under an insurance policy, (iv) the facts and
circumstances underlying the Breach were known by the Partnership or their
representatives and professional advisors on the Signing Date or on any
applicable Closing Date, provided that the Partnership shall be deemed to have
knowledge of all matters which were fairly disclosed in the Due Diligence
Information, (v) the Damages result from or are increased by the passing of,
or
any change in, after the Signing Date or any applicable Closing Date, any law,
statute, ordinance, rule, regulation, common law rule or administrative practice
of any government, governmental department, agency or regulatory body including
(without prejudice to the generality of the foregoing) any increase in the
rates
of Taxes or any imposition of Taxes or any withdrawal or relief from Taxes
not
actually in effect at the Signing Date.
(ii) Limitations
on Indemnification.
(A) Except
for any one or more Breach constituting fraud, the indemnification obligations
of the Management Stockholders for any Breach of a representation or warranty
made by any of them in this Agreement shall expire upon consummation of the
transactions contemplated by the Stock Exchange Agreement, and in the event
that
the transactions contemplated by the Stock Exchange Agreement shall not occur,
any claims of the Partnership for Breaches of the Management Stockholder’s
representations and warranties made under this Agreement shall become
time-barred (verjähren)
with
the expiration of twelve (12) months following the First Closing Date.
-
28
-
(B) Except
for any one or more Breach constituting fraud, the Management Stockholders
shall
only be liable for Damages resulting from an individual Breach of a
representation and warranty if and to the extent that such Damages exceed an
amount of €15,000 (the “De
Minimis Amount”)
and
the aggregate amount of all Damages resulting from individual Breaches which
have resulted in Damages above the De Minimis Amount exceeds €100,000 (the
“Deductible
Amount”),
in
which case only the excess amount shall be recoverable (Freibetrag);
(C) Except
for any one or more Breach constituting fraud, for any Damages resulting from
a
Breach of the Management Stockholders’ representations and warranties under this
Agreement, the Management Stockholders shall be severally (and not jointly
and
severally) liable pro-rata to the proportion of their respective shareholding
in
Algatec after the Second Closing Date, and
(D) absent
fraud, the Management Stockholders’ aggregate liability for Breaches of their
representations and warranties, under this Agreement, shall be limited to a
maximum amount of € 800,000 and the individual liability of Freud and Malik
shall be limited (in each case) to €150,000 and the individual liability of
Xxxxxxx and Xxxx shall be limited (in each case) to € 250,000.
“Damages”
shall
mean all actual damages (within the meaning of Sections 249 et seq. of the
German Civil Code (BGB))
incurred, excluding (i) any potential or actual reduction in value (Minderung)
of the
Company or the respective Subsidiary (as the case may be) beyond the actual
damage incurred, (ii) any indirect or consequential damages (Folgeschäden),
(iii)
any lost profits (entgangener
Gewinn)
which
are suffered solely on the level of the Partnership, (iv) any internal
administration and overhead costs.
c. Survival
of Covenants. The
covenants and agreements of the Partnership and the Management Stockholders
to
be performed on or before the First Closing Date and the Second Closing Date
shall survive until the expiry of the applicable statutory limitation period.
The post-closing covenants and agreements of the Parties set forth in
Section
9 of
this
Agreement shall survive for a period of 10 years after the First Closing
Date.
d. Procedure
for Indemnification.
If a
claim is to be made against any or all of the Management Stockholders, the
Partnership shall give notice to the Management Stockholders of such claim.
In
the event that the Management Stockholders object in writing to any claim for
Damages, the Indemnified Party and such Indemnifying Parties shall attempt
in
good faith to resolve the dispute.
e. Remedies.
Except
as set forth below, the remedies which the Partnership may have against the
Management Stockholders for Breaches of their representations and warranties
shall solely be governed by this Agreement and shall be the exclusive remedies
available to the Partnership. To the extent permitted by law, any further claims
and remedies other than those explicitly provided for in this Agreement,
irrespective of their nature, amount or legal basis, are hereby expressly waived
and excluded. Without limiting the generality of the preceding sentence, any
right of the Partnership to withdraw (Rücktritt)
from
this Agreement or to require the winding up of the transaction contemplated
hereunder on any other legal basis (e.g., by way of großer
Schadenersatz),
any
claims for breach of pre-contractual obligations (culpa
in contrahendo),
or
ancillary obligations (positive
Forderungsverletzung),
except
claims for willful deceit (arglistige
Täuschung),
are
hereby expressly excluded and waived by the Partnership; this shall not apply
to
any rights and remedies for fraud or willful misconduct (Vorsatz).
In the
event that any Party shall breach or fail to perform any material covenant
and
agreement on its part to be performed following the Second Closing Date, the
non-breaching party shall have the right (but not the obligation) to apply
to
any court of competent jurisdiction for an injunction or other equitable
remedies that such court may deem proper, including, without limitation, an
order compelling the breaching Party or Parties to perform such covenants or
agreements.
-
29
-
11. Governing
Law.
The
validity and interpretation of this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the Republic of Germany.
Each of the parties hereto and their assigns hereby consents to the exclusive
jurisdiction and venue of the Courts of the Republic of Germany, located in
Frankfurt, Germany with respect to any matter relating to this Agreement and
performance of the parties’ obligations hereunder, the documents and instruments
executed and delivered concurrently herewith or pursuant hereto and performance
of the parties’ obligations thereunder and each of the parties hereto hereby
consents to the personal jurisdiction of such courts and shall subject itself
to
such personal jurisdiction. Any action, suit or proceeding relating to such
matters shall be commenced, pursued, defended and resolved only in such courts
and any appropriate appellate court having jurisdiction to hear an appeal from
any judgment entered in such courts. The parties irrevocably waive the defense
of an inconvenient forum to the maintenance of such suit or proceeding. Service
of process in any action, suit or proceeding relating to such matters may be
made and served within or outside the Republic of Germany or in the United
States by registered or certified mail to the parties and their representatives
at their respective addresses specified herein, provided that a reasonable
time,
not less than thirty (30) days, is allowed for response. Service of process
may
also be made in such other manner as may be permissible under the applicable
court rules.
12. Miscellaneous.
a. Headings.
The
headings of this Agreement are for convenience of reference only and shall
not
form part of, or affect the interpretation of, this Agreement.
b. Severability.
In the
event that any provision of this Agreement is invalid or unenforceable under
any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform to such statute or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof.
c. Entire
Agreement; Amendments.
This
Agreement and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein. No
provision of this Agreement may be waived or amended other than by an instrument
in writing signed by the Party to be charged with enforcement.
d. Notices.
Any
notices required or permitted to be given under the terms of this Agreement
shall be sent by certified or registered mail (return receipt requested) or
delivered personally or by courier (including a recognized overnight delivery
service) or by email or facsimile transmission, and shall be effective five
days
after being placed in the mail, if mailed by regular mail, or upon receipt,
if
delivered personally or by courier (including a recognized overnight delivery
service) or by email or facsimile transmission, in each case addressed to a
Party. The addresses for such communications shall be:
If
to the
Management Stockholders:
Algatec
Solar AG
Xxxxxxxxxx
Xxx 0
00000
Xxxxxxxxxx/XX Xxxxxx
Germany
Attn:
Xxxxxx Xxxxxxx, Chief Executive
Officer
Office: 011.49.(0)
00 00-00 00 0
Fax: 011.49.(0)
00 00-00 00
Email: xxxxxxx@xxxxxxx.xxx
-
30
-
with
copies to:
Xx.
Xxxxxx Xxxxx
Tegernseer
Beratungs-Service and
Rechenzentrum
GmbH
Xxxxxxxx
Xxxxxxxxxxxx 00
00000
Xxxxxxx-Xxxxx
Xxxxxxx
Office: 011.49.(0)
0000.0000.00
Fax: 011.49.(0)
8022.2778.44
Email: x.xxxxx@xxx.xx
Xxxxxx
Xxxxx, Esquire
Xxxxxx
& Xxxxxxx LLP
Xxxxxxxxxxx
Xxxxx
Xxxxxxxxx
00
00000
Xxxxxxxxx xx Xxxx
Tel.:
+49-69-6062 6517
Fax:
+49-69-6062 6700
E-Mail:
Xxxxxx.Xxxxx@xx.xxx
If
to the
Trustee:
Xxxxxx
Xxxxxxx, Esq.
Rechtsanwalt
Xxxxxxxx
Xxxxxxx 00x
00000
Xxxxxxx, Xxxxxxx
Telephone:
(000) 00 00000 00000
Email:
xxxx@xxxxxxx-xxxxxxxxxxxxxx.xx
If
to an
Partnership:
Algatec
Equity Partners, L.P.
c/o
Algatec Management LLC
c/o
Xxxxxx X. Xxxxx, Manager
000
Xxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Office: (000)
000-0000
Cell: (000)
000-0000
Email: xxxxxxxx@xxxxx.xxx
with
copies to:
Xxxxxxx
Xxxx LLP
0000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Each
Party shall provide notice to all of the other parties of any change in
address.
-
31
-
e. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the Parties and
their successors and assigns. Permitted Transferees, none of the Parties hereto
may assign this Agreement or any rights or obligations hereunder without the
prior written consent of the other Parties hereto, provided that the Partnership
shall remain jointly and severally liable together with any Permitted Transferee
for the obligations set forth under Section 4 above.
f. Third
Party Beneficiaries.
This
Agreement is intended for the benefit of the Parties hereto, the Partnership
and
their respective Permitted Transferees, successors and assigns, and is not
for
the benefit of, nor may any provision hereof be enforced by, any other
Person.
g. Further
Assurances.
Each
Party shall 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 the other Party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
h. Counterparts;
Signatures by Facsimile.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same agreement
and shall become effective when counterparts have been signed by each Party
and
delivered to the other Party. This Agreement, once executed by a Party, may
be
delivered to the other Party hereto by facsimile transmission of a copy of
this
Agreement bearing the signature of the Party so delivering this Agreement and
such signature shall create a valid binding obligation of the party executing
(or on whose behalf such signature is executed) the same with the same force
and
effect as if such facsimile signature were the original thereof..
[remainder
of page intentionally left blank]
-
32
-
IN
WITNESS WHEREOF,
the
undersigned have caused this Share Purchase Agreement to be duly executed as
of
the date and year first above written.
|
ALGATEC
SOLAR AG
|
|
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|
Name:
Xxxxxx Xxxxxxx
|
|
|
Title:
Chairman and CEO
|
|
|
MANAGEMENT
STOCKHOLDERS:
|
|
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx
|
|
|
/s/
Xxxxxxx Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
|
|
/s/
Xx. Xxxxxx Xxxxx
|
|
|
Name:
Xx. Xxxxxx Xxxxx
|
|
|
/s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
THE
TRUSTEE:
|
|
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx,
Esquire
|
|
| THE PARTNERSHIP: | ||
| ALGATEC EQUITY PARTNERS, L.P. | ||
|
By:
|
Algatec
Management LLC
|
|
|
General
Partner
|
||
|
/s/
Xxxxxx X. Xxxxx
|
||
|
Xxxxxx
X. Xxxxx, Manager
|
||
-
33
-
