Share Purchase Agreement between Rainer Diekmann and Peerless Europe Limited for 100% of Burgess Manning GmbH
This agreement is between Rainer Diekmann (the Seller) and Peerless Europe Limited (the Purchaser) for the sale of all shares in Burgess Manning GmbH, a German company. The Purchaser agrees to buy 100% of the shares for €4,000,000, with €3,000,000 paid at signing and €1,000,000 deferred for one year, secured by a bank guarantee. The agreement covers transfer of ownership, profit allocation, warranties, remedies for breach, tax matters, and other covenants. The transaction is subject to certain conditions and includes post-closing adjustments based on the company’s financial statements.
1. Definitions | 2 | |||
2. Sale and Purchase and Transfer of Shares | 2 | |||
2.1 Sale and Purchase | 2 | |||
2.2 Profits | 2 | |||
2.3 Transfer of Shares | 2 | |||
3. Purchase Price | 2 | |||
3.1 Purchase Price | 2 | |||
3.2 Payment of Purchase Price | 2 | |||
3.3 Post Closing Adjustments | 3 | |||
4. Representations and Warranties | 5 | |||
4.1 Sellers Warranties | 5 | |||
4.2 Purchasers Warranties | 5 | |||
5. Remedies for Misrepresentation or Breach of Warranty | 6 | |||
5.1 Remedies of Purchaser | 6 | |||
5.2 Remedies of Seller | 9 | |||
6. Tax Indemnification | 9 | |||
6.1 Tax Covenant | 9 | |||
6.2 Limitations | 10 | |||
6.3 Indemnification Procedures | 11 | |||
6.4 Preparation of Tax Returns and Payment of Tax | 12 | |||
6.5 Tax Refund | 12 | |||
7. Undertakings on Signature Date | 13 | |||
7.1 Consulting Agreement and Release | 13 | |||
7.2 Instructions to the Notary | 13 | |||
7.3 Voting Proxy | 13 | |||
8. Release of Collaterals and Liabilities | 14 | |||
9. Other Covenants | 14 | |||
9.1 Non Competition and Non-Solicitation | 14 | |||
9.2 Press Releases | 14 | |||
9.3 Confidentiality | 15 | |||
10. Consent of Mrs. Diekmann according to Sec. 1365 German Civil Code (BGB) | 15 | |||
11. Taxes, Costs, Expenses and Interest | 15 |
11.1 Taxes | 15 | |||
11.2 Costs and Expenses | 15 | |||
11.3 Set-off, Retention | 16 | |||
12. General Provisions | 16 | |||
12.1 Notices | 16 | |||
12.2 Entire Agreement, Schedules and Language | 18 | |||
12.3 Form | 18 | |||
12.4 Succession and Assignment | 18 | |||
12.5 Severability | 18 | |||
13. Governing Law and arbitration | 19 | |||
13.1 Governing Law | 19 | |||
13.2 Arbitration | 19 | |||
Table of Exhibits | 21 | |||
Schedules to Exhibit 4.1 | 22 | |||
Exhibit 1 Definitions | 23 | |||
Exhibit 4.1 Sellers Warranties | 31 | |||
Exhibit 4.2 Purchasers Warranties | 46 |
(1) | Burgess Manning GmbH is a limited liability company (Gesellschaft mit beschränkter Haftung) organised under the laws of Germany, registered with the Commercial Register (Handelsregister) of the Local Court (Amtsgericht) of Düsseldorf under HRB 12150 with registered office in Düsseldorf (the Company). |
(2) | The registered share capital (Stammkapital) of the Company amounts to nominal DM 438,000.00 (in words: German Marks four hundred thirty eight thousand) in the aggregate, divided into five fully paid up shares with the consecutive numbers and in the nominal amounts of: |
| consecutive number 1: DM 500.00 | ||
| consecutive number 2: DM 283,000.00 | ||
| consecutive number 3: DM 19,500.00 | ||
| consecutive number 4: DM 60,000.00 | ||
| consecutive number 5: DM 75,000.00 |
in total DM 438,000.00 (collectively the Shares). |
(3) | As of the date hereof, the Seller is the sole owner (alleiniger Eigentümer) of all of the Shares. |
(4) | The Company is engaged in the development, production, installation and sale of acoustic, vent and blowdown silencers as well as of vibration absorbers, separators, sound absorbers, air-intake filters, filter separators, compressors, pumps and heat collectors for application in any kind of machinery, equipment, tool and instrument (the Business). |
(5) | The Purchaser is a company organised under the laws of the United Kingdom with registered offices at Cardinals Court, Bradford Street, Braintree, Essex CM7 9AT. |
(6) | The Seller wishes to sell (verkaufen) and transfer title to (übereignen) the Shares to the Purchaser and the Purchaser wishes to purchase (kaufen) and have transferred title in the Shares from the Seller to it on the terms and subject to the conditions of this Agreement. |
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1. | Definitions |
2. | Sale and Purchase and Transfer of Shares | |
2.1 | Sale and Purchase |
2.2 | Profits |
2.3 | Transfer of Shares |
3. | Purchase Price | |
3.1 | Purchase Price |
3.2 | Payment of Purchase Price |
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Account no.: |
Bank: |
Bank Code: |
Swift Code: |
IBAN: |
Reference: | Peerless Europe Limited-Burgess Manning Purchase Price Payment |
3.3 | Post Closing Adjustments |
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3.4 | Effectiveness of 2011 Financial Statements |
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4. | Representations and Warranties |
4.1 | Sellers Warranties |
4.2 | Purchasers Warranties |
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5. | Remedies for Misrepresentation or Breach of Warranty |
5.1 | Remedies of Purchaser |
(a) | In the event of a breach (Verletzung) of any of the Sellers Warranties, the Seller shall, within thirty (30) Business Days after having received a notification of such a breach, put the Purchaser or, at the election of the Purchaser, the Company in the position in which the Purchaser or the Company would have been had no such breach of a Sellers Warranty occurred (restitution in kind; Naturalrestitution). |
(b) | If and to the extent that the Seller fails to cure the breach within the requisite period of time and in the manner set out in Section 5.1.1(a) above, the Purchaser shall at its election be entitled to claim monetary damage compensation (Schadenersatz in Geld) instead of restitution in kind. Any such compensation shall be deemed to be an adjustment of the Purchase Price. |
5.1.2. | Scope of and Limitations on Liability |
(a) | The monetary damage compensation, if any, shall cover all damages suffered by the Purchaser with the exception of consequential damages (mittelbare Schäden und Folgeschäden), costs for internal administration, overhead costs and expenses, lost profits (entgangene Gewinne), reduced enterprise value (Unternehmenswert), punitive damages, and any additional tax burden (zusätzliche Steuerbelastung) of the Purchaser. |
(b) | The Purchaser shall only be entitled to any Claims under Sections 4 and 5 to the extent (i) an individual claim exceeds the amount of EUR 10,000 (ten thousand Euros) (the De Minimis Amount) and (ii) the aggregate amount of all such individual claims exceeds EUR 125,000 (one hundred twenty-five thousand Euros) (the Threshold). In the event that the Claims should exceed the Threshold, then the Purchaser shall be entitled to recover the amount in excess of the Threshold (Freibetrag). For the avoidance of doubt, this Section 5.1.2 (b) shall also apply with respect to Claims based on Section 6 of this Agreement (Tax Indemnification). |
(c) | The aggregate liability of the Seller for any and all Claims of the Purchaser out of and in connection with this Agreement and its implementation, including in |
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particular, without limitation, Claims under Sections 4 and 5, shall be limited to an amount of EUR 360,000.00. For the avoidance of doubt, this Section 5.1.2(c) shall also apply with respect to Claims based on Section 6 of this Agreement (Tax Indemnification). |
(d) | The Seller shall not be liable for, and the Purchaser shall not be entitled to Claims for any damages under or in connection with this Agreement, if and to the extent that: |
i | damages are compensated by any advantages of the Company arising out of the same facts and circumstances (Prinzip der Vorteilsanrechnung); or |
ii | the Purchaser or, following the Signature Date, the Company has actually recovered from any third party, including but not limited to, an insurer, any sum in respect of any matter to which a Claim made relates (all duly documented costs and expenses incurred in making such recovery, including reasonable attorneys fees, deducted); |
(e) | Purchaser shall be considered to be aware of all circumstances and facts specifically disclosed in this Agreement (including all Exhibits and Schedules thereto and including the documents submitted to the Purchaser as set out in Exhibit 4.1, Sec. 13.2). Sellers liability out of or in connection with this Agreement and its implementation, including in particular, without limitation, under Sections 4 and 5, is hereby excluded to the extent that such Claim is based upon such circumstances and facts. For the avoidance of doubt, any fact or circumstance disclosed under a specific provision of the catalogue of warranties and guarantees shall be deemed to be disclosed also with regard to all other provisions of this Agreement. |
(f) | Subject to and in accordance with Section 254 of the German Civil Code (BGB), the Purchaser shall be obliged to minimise damages and losses with regard to all Claims against the Seller out of and in connection with this Agreement and its implementation. |
(g) | Except as expressly stated in Sections 4 and 5 elsewhere in this Agreement, the Purchaser hereby waives any and all further claims that it may have against the Seller, including, without limitation, claims based on pre-contractual fault (culpa in contrahendo), specific performance (positive Vertragsverletzung), frustration (Störung der Geschäftsgrundlage) or reduction of the purchase price (Minderung), and including in particular, without limitation, any rights and claims based on Sec. 241 para 2, 311 para 2, 323 et seq., 313, 434 et seq. German Civil Code (BGB). Any right to withdraw from this Agreement regardless of its legal basis is hereby waived and excluded unless this Agreement explicitly provides for such a right to withdraw. Furthermore, the Purchaser hereby waives any and all claims resulting from liability in tort (deliktische Ansprüche). The aforesaid waiver shall not apply if the Seller acted intentionally. Section (g) shall apply mutatis mutandis |
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for any claims of the Seller against the Purchaser based on Section 4.2 of this Agreement. | ||
(h) | The limitations set forth in this Section 5.1.2 shall not apply in the event of wrongful deceit (arglistige Täuschung) or other intentional breaches of contract (vorsätzliche Vertragsverletzung). |
(a) | Sellers Warranties made in Exhibit 4.1, Section 1 (Sellers Authority), Section 2 (Title to Shares), Section 3 (Corporate Information) and Section 4 (Shareholdings) on or prior to the tenth (10th) anniversary of the Signature Date; | |
(b) | Sellers Warranties made in Exhibit 4.1, Section 12 (Tax Matters) at the later of (i) six (6) months after the final and non-appealable assessment (bestandskräftige Festsetzung) of the relevant Tax or (ii) six (6) months after the date on which the relevant statute of limitation for assessment of the relevant Tax (taking into account all relevant suspensions (Ablaufhemmung)) has expired, except in the event of criminal or administrative offences related to Taxes (Steuerstraftaten, Steuerordnungswidrigkeiten) and in the event that Taxes have been contested, in which events the relevant Claims of the Purchaser shall become time-barred six (6) months after the final and non-appealable assessment (bestandskräftige Festsetzung) of the relevant Tax; | |
(c) | Sellers Warranties made in Exhibit 4.1, Sections 15 (Employment Matters) and 16 (Social Security Matters) on or prior to the earlier of (i) six (6) months after the assessment for the relevant social security contributions has been determined and become legally binding (rechtskräftig festgesetzt) or any Claims of employees have been duly notified to the respective employing Company or (ii) six (6) months after the expiration of the relevant statute of limitations; | |
(d) | all other Sellers Warranties made in Exhibit 4.1 on or prior to twenty four (24) months following the Signature Date, | |
(each of the foregoing time-periods shall be referred to herein as a Claim Period). |
(a) | In case that any Claim is made, or threatened to be made in writing, which is likely to give rise to a Claim of the Purchaser for a breach of any of the Sellers Warranties or for indemnification under this Agreement (the Third Party Claim), the Purchaser shall notify the Seller in writing about such Claim and |
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shall be entitled (but not obliged) to oppose, or to cause the Company to oppose, such Claim, and the Seller shall use its best efforts in assisting the Purchaser or the Company in the defence of such Claim. | ||
(b) | In connection with any such Third Party Claim, the Purchaser shall use reasonable efforts to consult with and apprise the Seller of any significant events relating to the Third Party Claim and, when feasible, to provide to the Seller copies of relevant, non-privileged information and documentation relating to such Third Party Claim, which the Seller agrees to keep confidential in accordance with Section 9.3, insofar such actions: |
i | are permissible under applicable law; | ||
ii | could not be deemed to waive any privilege, defense, or Claim; or | ||
iii | could not result in a breach of any agreement or other undertaking with the Seller or any other Person. |
(a) | In the case of Taxes other than Taxes based upon or related to income, sales, transfers, gross receipts, wages, capital expenditures, expenses or any similar Tax base or transactional Taxes, such portion shall be deemed to be the amount of such Tax for the entire period multiplied by a fraction, the denominator of which is the number of days in the entire Tax period and the numerator of which is the number of days of the portion of such period ending on the Book Closing Date. |
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(b) | In the case of any Taxes based upon or related to income, sales, transfers, gross receipts, wages, capital expenditures, expenses or any similar Tax base or transactional Taxes, such portion shall be deemed equal to the amount that would be imposed on the Company if the relevant Tax period ended on the Book Closing Date. |
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Habichtweg 6
D-40883 Ratingen
Federal Republic of Germany
Fax: +49-(0)2102-69862
Att. Dr. Udo von Fragstein
Holzstrasse 2; as of January 30, 2012: Kaistrasse 16 A
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Federal Republic of Germany
Fax: +49-(0)211-157676-76
Cardinals Court, Bradford Street
Braintree, Essex
CM7 9AT
England
14651 Dallas Parkway, Suite 500
Dallas, TX 75254
Attn.: Craig T. Redinger
Prinzregentenstr. 48
80538 Munich
Federal Republic of Germany
Fax: +49 89 242 93222
(a) | The receipt of notices in connection with this Agreement by the advisers of the Parties shall not constitute or substitute receipt of such notices by the Parties themselves. | |
(b) | Regarding the receipt of a notice by a Party, it shall be irrelevant whether the notice has also reached such Partys adviser or (copy to) the recording notary, regardless of whether in the individual case this Agreement provides for the notice to be copied to the respective adviser or the recording notary. |
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/s/ Rainer Diekmann | ||||
Rainer Diekmann | ||||
/s/ Barry Nesbit | ||||
Managing Director | ||||
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1 | Definitions | |
3.2A | Bank Guarantee | |
4.1 | Sellers Warranties | |
4.2 | Purchasers Warranties | |
7.1 | Consulting Agreement | |
7.1A | Termination Agreement | |
8.1 | Collateral | |
10 | Consent of Mrs. Diekmann |
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3.5 | Excerpt from the commercial register regarding the Company | |
3.6 | Copies of the articles of association of the Company | |
7.1 | Financial statements of the Company | |
7.2 | Exceptions to Previous Financial Statements | |
8.3 | List of personal property held under leases, security agreements, conditional sales contracts or other title retentions or security arrangements | |
9.1 | List of accounts receivable | |
10.1 | List of the real property leased | |
11.1(c) | List of actions, Claims, investigations or other Proceedings based on Environmental Laws | |
12.4 | List of accounting or valuation differences | |
13.1 | List of Material Contracts | |
14.1 | List of Intellectual Property Rights | |
15.1 | Employment terms | |
15.4 | List of applicable usages | |
16.2 | Companys Employee Benefit Plan | |
16.3 | List to pension commitments | |
17.1 | List and description of all insurance policies owned by the Company | |
18.1 | List of pending litigation and investigations | |
18.3 | List of closed litigation matters | |
20.1 | List of Sellers interests | |
20.2 | List of competing interests | |
20.3 | List of business relationships with i.e. officers, directors, employees or the Shareholders or members of their families. | |
22 | List of Bank Accounts | |
23A | List of Product Warranty Claims | |
23B | List of Product Warranty |
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2011 Financial Statements | shall have the meaning set forth in Section 3.3. | |
2012 Financial Statement Date | shall have the meaning set forth in Section 3.4. | |
Accounting Rules | shall mean the generally accepted accounting principles within the meaning of § 243 para. 1 HGB (GAAP) as of the respective date. | |
Agreement | shall mean this Share Purchase Agreement including all of its Exhibits and Schedules. | |
AktG | shall mean the German Stock Corporation Code (Aktiengesetz) as amended from time to time (in der jeweils geltenden Fassung). | |
Auditor | shall have the meaning set forth in Section 3.4. | |
Bank Account | shall have the meaning set forth in Exhibit 4.1, Section 22. | |
Benefit Plans | shall have the meaning set forth in Exhibit 4.1, Section 16.1 | |
Best Knowledge of Seller | shall mean (i) the actual knowledge of Seller or Mr. Karim Ayoob as managing director of the Company as to a fact or matter, or (ii) that which a prudent businessman could be expected to discover, and (iii) the knowledge these persons do not have, but would have had if they had acted without intention (Vorsatz) or gross negligence (grobe Fahrlässigkeit). Other than to the extent that Seller is aware of facts or circumstances that would warrant further inquiry, Seller shall not be obliged to conduct any additional investigation, including, but not limited to, customers. | |
BGB | shall mean the German Civil Code (Bürgerliches Gesetzbuch BGB). |
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Book Closing Date | shall have the meaning set forth in Section 2.2. | |
Business Day | shall mean any calendar day other than a Saturday, Sunday, national public holiday in Germany or the twenty fourth (24th) or thirty first (31st) of December. | |
Claim | shall mean any existing or threatened claim, demand or cause of action of any kind or character under any theory (including contract, tort, statutory liability, premises liability, products liability, breach of warranty or malpractice), whether civil, criminal, investigative or administrative, whether made by Tax Authorities or by other Governmental Authorities or any other Person, whether absolute or contingent, and whether or not asserted in any Proceeding. | |
Claim Period | shall have the meaning set forth in Section 5.1.3. | |
Collateral | shall have the meaning set forth in Section 8.1. | |
Company | shall have the meaning set forth in Recital (1). |
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Confidential Information | shall mean (i) the terms and conditions of this Agreement (including the consideration to be paid hereunder) and the course of dealing between the Parties hereunder (including any dispute between the Parties conducted pursuant to Section 12), and (ii) any trade secrets, know-how, technical data or proprietary information of the Company, including information relating to products, manufacturing, services, processes, designs, formulas, developmental or experimental work, improvements, discoveries, plans for research or products, databases, computer programs, other original works of authorship, quality control, security, marketing and sales plans, business plans, budgets and financial information, prices and costs, customer lists, supplier lists, information regarding the skills and compensation of the employees and contractors of the Company and other non-public business information relating to the Company. The term Confidential Information includes all of the foregoing information, rights and materials, whether tangible or intangible, whether in written, oral, chemical, magnetic, photographic, optical or other form, in all stages of research and development, and whether now existing, or previously developed or created. Confidential Information does not include any information that is or becomes generally available to the public other than as a result, directly or indirectly, of a breach of Section 9.3. |
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Constitutional Documents | shall have the meaning set forth in Exhibit 4.1, Section 3.6. | |
Consulting Agreement | shall have the meaning set forth in Section 7.1. | |
Deferred Consideration | shall have the meaning set forth in Section 3.2. | |
De-Minimis Amount | shall have the meaning set forth in Section 5.1.2 (b). | |
DIS Rules | shall have the meaning set forth in Section 13.2. | |
Dissolved Accruals | shall have the meaning set forth in Section 3.3. | |
Environmental Laws | shall have the meaning set forth in Exhibit 4.1, Section 11.1. | |
Excess Damages | shall have the meaning set forth in Section 3.3. | |
Financial Statements | shall have the meaning set forth in Exhibit 4.1, Section 7.1. | |
GAAP | shall mean the German generally accepted accounting principles within the meaning of Section 243 para. 1 HGB. | |
Guarantee | shall have the meaning set forth in Section 3.2. | |
GmbHG | shall mean the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) as amended from time to time (in der jeweils geltenden Fassung). |
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Governmental Authority | shall mean (i) any sovereign Person or political subdivision thereof, (ii) any government thereof (whether European, federal, state, local or foreign) or any department, agency, bureau, commission, office, service, regulatory body or other instrumentality of government or (iii) any court or quasi-judicial (public or private, including any arbitration tribunal). | |
HGB | shall mean the German Commercial code (Handelsgesetz-buch HGB). | |
Independent Auditor | shall have the meaning set forth in Section 3.4. | |
IFRS | shall mean the International Financial Reporting Standards issued by the International Accounting Standards Board. | |
Intellectual Property Rights | shall have the meaning set forth in Exhibit 4.1, Section 14.1. | |
KStG | shall mean German Corporate Tax Act (Körperschaftssteuer-gesetz KStG) | |
Last Financial Statements | shall have the meaning as set forth in Exhibit 4.1, Section 7.1 (b). | |
Liability | shall mean any liability (whether known or unknown, whether absolute or contingent, whether direct or indirect, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes. | |
Lien | shall mean any lien, charge, encumbrance and security interest, irrespective of whether such Lien arises under any agreement or by operation of statutory law. | |
Material Contracts | shall have the meaning set forth in Exhibit 4.1, Section 13.1. | |
Notice/Notices | shall have the meaning set forth in Section 12.1.1. |
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Order | shall mean (i) any order, judgment, decree, decision, ruling, writ, assessment, charge, stipulation, injunction or other determination of any Governmental Authority (including any arbitration award entered by an arbitrator) having competent jurisdiction to render such and (ii) any settlement agreement entered into in connection with the settlement, dismissal or other resolution of any Proceeding. | |
Ordinary Course of Business | shall mean the ordinary course of business of the Company and its Subsidiaries, consistent with its past custom and practice (including with respect to quantity and frequency), but in any event satisfying the standard of care of a prudent business person (Sorgfalt eines ordentlichen Kaufmanns) and excluding any action or omission that constitutes, (or with the passage of time, the giving of notice by any Person or the happening of any other event, would constitute) a breach of any contract or warranty, a tort, an infringement of any right of any other Person or a violation of Law. | |
Party / Parties | shall have the meaning as set forth on the second page of this Agreement. | |
Pension Payment | shall have the meaning set forth in Exhibit 4.1, Section 16.5. | |
Permit | shall mean any approval, consent, exemption, franchise, accreditation, license, permit, waiver, registration, filing, certificate or other authorization required by Law or any Governmental Authority. | |
Person | shall mean an individual, a partnership, a corporation, an association, a trust, a joint venture, an unincorporated organization, a Governmental Authority or any other entity. | |
Previous Financial Statements | shall have the meaning set forth in Exhibit 4.1, Section 7.1 (a). | |
Proceeding | shall mean any charge, complaint, action, suit, litigation, proceeding, hearing, investigation, assessment or Claim, or any notice of any of the foregoing, by or before any Governmental Authority (including before any arbitrational tribunal). |
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Purchaser | shall have the meaning set forth on the second page of this Agreement. | |
Purchasers Warranties | shall have the meaning set forth in Section 4.2. | |
Related Party | shall mean (i) any Affiliate of the Seller (ii) any director, manager, officer or employee of the Seller (or of any of its Affiliates) and (iii) any family member of any of the foregoing who is a natural person. | |
Relevant Period | shall have the meaning set forth in Exhibit 4.1, Section 21 | |
Retained Profits | shall have the meaning set forth in Section 3.3 | |
Section | shall mean a section of this Agreement. | |
Seller | shall have the meaning set forth on the second page of this Agreement. | |
Sellers Warranties | shall have the meaning set forth in Section 4.1. | |
Shares | shall have the meaning set forth in Recital (2). | |
Signature Date | shall have the meaning set forth in Section 2.1. | |
Tax Authorities | shall mean, with respect to any Tax, any German or non-German governmental authority or political subdivision thereof or any other corporate body under public law that imposes such Tax and any German or non-German agency (if any) charged with the collection of such Tax for such authority. | |
Tax Returns | shall mean any return, declaration, report, statement, notice, computation, claim for refund, or information return or other document filed or to be filed relating to Taxes, including (i) any Schedule or attachment thereto, (ii) any amendment thereof and (iii) all other material information required to be supplied. |
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Taxes | shall mean all federal, state, local, German or non-German tax liabilities, including income taxes (personal or corporate), capital taxes, duties and stamp duties (both on the issuance and on the transfer or securities), withholding taxes, surcharges (e.g. solidarity surcharge), value added taxes, real estate transfer taxes, any other kind of transfer tax or public fee, public contributions, customs and excise, social security contributions and all other taxes and contributions payable to any competent German or non-German taxing authority in any Jurisdiction, as well as any interest, penalties, costs and expenses reasonably related thereto, all of which apply up to the Book Closing Date even if calculated for a period of time after the Book Closing Date. | |
Termination Agreement | shall have the meaning set forth in Section 7.1. | |
Third Party Claims | shall have the meaning set forth in Section 5.1.4. | |
Threshold | shall have the meaning set forth in Section 5.1.2 (b). | |
Transaction Documents | shall have the meaning set forth in Exhibit 4.1, Section 1.1. |
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1. | Sellers Authority |
1.1. | The Seller is competent and has full power, right and authority to enter into and perform his obligations under this Agreement, the Consulting Agreement , the Termination Agreement and the Guarantee (the Transaction Documents) to which he is a party. | ||
1.2. | The Seller is entitled to freely dispose of the Shares without the consent of any third party. | ||
1.3. | There is no requirement for the Seller to make any filing to or to obtain any approval from any governmental authority, other than those provided for in this Agreement, as a condition to consummating the transaction contemplated by this Agreement. |
2. | Title to Shares |
2.1. | The Seller has title (Eigentum) to the Shares owned by him free of any encumbrances (dingliche Belastungen), trusts (Treuhandschaften), or pending transfer; the Shares are not subject to any pre-emptive right (Vorkaufsrecht), right of first refusal (Vorerwerbsrecht) or similar right of a third party to acquire the Shares. There is no promise to sell the Shares and no other transfer restriction whatsoever (other than transfer restrictions provided for in the articles of association (Gesellschaftsvertrag) of the Company) and no obligation exists to make further contributions (keine Nachschusspflicht) within the meaning of sec. 26 para. 1 GmbHG. |
2.2. | Upon consummation of the transaction provided for in this Agreement in accordance with the terms hereof, the Purchaser will receive full and unrestricted title (unbelastetes Eigentum) to the Shares, free and clear of any Liens. |
3.1. | The statements in Recitals (1) to (4) regarding the Company are true and correct. The Company is duly incorporated and validly existing under the laws of Germany. The capital structure of the Company reflects the valid ownership of the relevant Shares, free and clear of any Lien or third party rights. Seller owns one hundred percent (100%) of the Shares of the Company. |
3.2. | The Shares represent the entire issued and outstanding share capital of the Company. The Shares of the Company are validly issued (wirksam ausgegeben) and fully paid (voll eingezahlt) no repayments of share capital (including hidden repayments) and no hidden distributions of profits (verdeckte Gewinnausschüttungen) have been made. The Shares are non-assessable (i.e. there is no shareholder obligation to make an additional capital contribution). |
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3.3. | There are no subscription or option or conversion rights (Bezugs-, Options- oder Wandelrechte) or any other agreements of any kind relating to the sale, issuance or voting of, or the granting of rights to acquire, any of the Shares or other securities in the Company. | ||
3.4. | There exists no authorization, obligation or arrangement (present or future, absolute, contingent or otherwise) of the Company to issue or sell shares to any Person. No further capital, shares, or other equity instruments in the Company have been or will be issued on or prior to the Signature Date. | ||
3.5. | The excerpt from the commercial register regarding the Company as disclosed in Schedule 3.5 hereto is true, correct and complete. With regard to the Company, only the persons registered in the Commercial Register are authorized to represent the Company. | ||
3.6. | Schedule 3.6 hereto contains a true and correct copy of the articles of association of the Company including all modifications and amendments made until today (the Constitutional Documents). The Constitutional Documents are in full force and effect. No resolution for the amendment of the Constitutional Documents has been adopted, and no filings with the commercial register or equivalent official corporate registers are pending. The Company is not in violation of its Constitutional Documents. | ||
The Company has not applied for bankruptcy or insolvency proceedings. To the Best Knowledge of the Seller, no circumstances exist which would require an application by the Company for any bankruptcy or insolvency proceedings or which, according to any applicable bankruptcy or insolvency laws, would justify the avoidance of this Agreement. | |||
3.7. | The Company is not a party to a control agreement (Beherrschungsvertrag), profit transfer agreement (Gewinnabführungsvertrag) or other enterprise agreement (Unternehmensvertrag) within the scope of Secs. 291 et seq. AktG or comparable profit sharing or pooling agreement under the laws of any other jurisdiction. |
4. | Shareholdings |
5. | Transaction Not a Breach |
5.1. | The execution (Abschluss) and performance (Durchführung) by the Seller of this Agreement and the Transaction Documents to which he is a party and the consummation of the transaction contemplated hereby or thereby will not: |
(a) | infringe any rights of a third party; or |
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(b) | violate or conflict with or result in a breach of or default under any provision of any Law; or | ||
(c) | breach, violate or constitute a default or an event which would give rise to any right of termination or cancellation, in accordance with the express terms of any agreement to which the Seller or the Company are a party, or by which the Seller or the Company or any of their properties or assets may be bound; or | ||
(d) | result in the termination of any Tax exemption or Tax grants granted by, or other Tax arrangements with, the competent Tax Authority; or | ||
(e) | violate or conflict with in any way, or result in a violation of, or constitute a default (whether after the giving of notice, lapse of time or both) under, any provision of Law. |
6. | General Legal Compliance |
6.1. | The Company has obtained all Permits which are required to operate the Business in the places and in the fashion or manner in which the Business is operated on the Signature Date. All such Permits are valid and subsisting and have been complied with in all respects and to the Best Knowledge of Seller, no event has occurred as a result of which any of the Permits may be revoked, suspended, annulled, or materially modified or restricted or conditions may be imposed to the Permits. | ||
6.2. | To the Best Knowledge of Seller, none of the directors (Geschäftsführer), or employees (Angestellte) of the Company has committed, or omitted to do, any act or thing in contravention of any Law, order or regulation regarding commercial bribes or kick-backs, unlawful political contributions, payoffs to governmental officials, illegal rebates to customers, violations of customs or currency controls, or similar corrupt practices, including the Organisation for Economic Co-Operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the United States Foreign Corrupt Practices Act, the German Criminal Law Act (Strafgesetzbuch), the Act on Combating Bribery of Foreign Public Officials (Gesetz zur Bekämpfung internationaler Bestechung) and any applicable competition Laws (in particular violations of price fixing prohibitions) or similar legislation in any applicable jurisdiction, as may be in force from time to time. | ||
6.3. | There is not in existence, or to the Best Knowledge of Seller, pending or threatened, any action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, notice or enquiry by, or on behalf of, any Governmental Authority or other body in respect of the affairs of the Company or in respect of the Business. |
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7. | Financial Information |
7.1. | Schedule 7.1 hereto contains true and complete copies of the following financial statements of the Company (the Financial Statements): |
(a) | the unaudited balance sheets (Bilanz) of the Company as of 30 th September 2005 to 2009, and the profit and loss statement (Gewinn- und Verlustrechnung), together with the notes (Anhang) and the statement of affairs (Lagebericht) thereto for the fiscal years or periods then ended (together the Previous Financial Statements); and | ||
(b) | the unaudited balance sheet of the Company as of 30 September 2010 and the profit and loss statement, of the fiscal year then ended (the Last Financial Statements). |
7.2. | With the exception of what has been disclosed in Schedule 7.2, the Previous Financial Statements have been prepared in accordance with the Accounting Rules and in compliance with the principle of formal and material balance sheet consistency (formelle und materielle Bilanzkontinuität), preserving all valuation methods (Bewertungsmethoden), on the basis of an unaltered execution of capitalization options (Aktivierungswahlrechte) and options to include items in the liabilities (Passivierungswahlrechte). They present a true and fair view (ein den tatsächlichen Verhältnissen entsprechendes Bild) of the assets and liabilities (Vermögenslage) as well as the financial situation (Finanzlage) and the result and profit situation (Ertragslage) of the Company. Each of the Previous Financial Statements is complete and correct, is consistent with the books and records of the Company and gives a true and fair view in the whole and in each individual position, the Companys financial position (assets and liabilities and equity) as of its respective date and accurately and completely presents the results of operations, shareholders equity and cash flows for the period related thereto in accordance with applicable law, the bylaws and the Accounting Rules consistently applied throughout the periods covered thereby. | ||
7.3. | With the exception of what has been disclosed in Schedule 7.2, the Last Financial Statements have been prepared in accordance with GAAP, the Accounting Rules and in compliance with the principle of formal and material balance sheet consistency (formelle und materielle Bilanzkontinuität), preserving all valuation methods (Bewertungsmethoden), on the basis of an unaltered execution of capitalization options (Aktivierungswahlrechte) and options to include items in the liabilities (Passivierungswahlrechte).They present a true and fair view (ein den tatsächlichen Verhältnissen entsprechendes Bild) of the assets and liabilities (Vermögenslage) as well as the financial situation (Finanzlage) and the result and profit situation (Ertragslage) of the Company. The Last Financial Statement is complete and correct, is consistent with the books and records of the Company and gives a true and fair view in the whole and in each individual position, the Companys financial position (assets and liabilities and equity) as of 30 September 2010 and accurately and completely presents the results of |
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operations, shareholders equity and cash flows for the financial year ending 30 September 2010 in accordance with applicable law, the bylaws and the Accounting Rules consistently applied throughout the periods covered thereby. |
7.4. | The Company does not have any debts, liabilities or obligations of any nature (Verbindlichkeiten) (whether accrued, absolute, contingent, direct, indirect, perfected, inchoate, unliquidated or otherwise and whether due or to become due), including, without limitation, liabilities or obligations on account of Taxes or governmental charges or penalties, interest or fines thereon or in respect thereof, except to the extent (i) specifically reflected and accrued for or (ii) specifically reserved against or (iii) referred to as contingent liability (Eventualverbindlichkeit oder Haftungsverhältnis) in the Financial Statements. | ||
7.5. | To the Best Knowledge of Seller, the reserves (Rückstellungen) reflected in the Financial Statements are adequate, appropriate and reasonable and have been calculated in a consistent manner. | ||
7.6. | To the Best Knowledge of Seller, the books of the accounts and all supporting books and records have been properly kept as required under applicable legal, regulatory and accounting requirements. They are up-to-date and contain complete and accurate records of all matters to be dealt with in such books under applicable law. |
8. | Assets |
8.1. | The Company owns or holds lawful possession of all tangible fixed assets (Sachanlagen) which is reflected in the Financial Statements except to the extent that these assets have been disposed of in the Ordinary Course of Business. The assets are not charged with any rights of third parties, including the transfer for security purposes (Sicherungsübereignungen), except for (i) customary (handelsübliche) or statutory rights of retention of title (Eigentumsvorbehalte), liens, pledges or other security rights in favour of suppliers, mechanics, workers, landlords, carriers and the like for supplies and services made or delivered for the benefit of the Business and (ii) statutory and security rights in favour of Tax Authorities or other Governmental Authorities. | ||
8.2. | To the Best Knowledge of Seller, all assets of the Company are in good operating condition and repair and are useable in the Ordinary Course of Business and none of these assets require any repair or replacement except for maintenance in the Ordinary Course of Business. | ||
8.3. | Except as set forth on Schedule 8.3 hereto and other than in the Ordinary Course of Business, none of the assets of the Company are held under any lease, security agreement, conditional sales contract or other title retention or security arrangement or is located other than on the premises of the Company. |
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9. | Accounts Receivables and Payables |
9.1. | Except as set forth on Schedule 9.1 hereto, all accounts receivable of the Company (net of the reserves set forth in the Financial Statements with respect to such accounts receivable) |
(a) | arose in the Ordinary Course of Business from bona fide arms-length transactions for the sale of goods or performance of services by the Company; |
(b) | are valid; |
(c) | the accounts receivables as defined above are collectible in the Ordinary Course of Business and such accounts receivables are not subject to counterclaims or setoffs. |
9.2. | The Company is presently not a party to and has not entered into any agreement to factor, sell, pledge or otherwise dispose of any accounts receivable. |
10. | Real Property |
10.1. | Schedule 10.1 hereto sets forth a list of all of the real property leased by the Company. Except as set forth on Schedule 10.1, the Company has a valid leasehold interest in all real property used by the Companys business. |
10.2. | The Company has not received written notice of any default or breach by the Company affecting the real property or any portion thereof, and, (i) no such default or breach now exists and (ii) no event has occurred or is continuing which with notice or the passage of time or both, would constitute a default thereunder. |
The Company has not received written notice of any cancellation or termination under a lease contract regarding real estate used by the Company. |
10.3. | Each rental and other payment due from the Company under a lease has been duly paid; each act required to be performed by the Company, which if not performed would constitute a breach thereof has been duly performed; and no act forbidden to be performed by the Company has been performed thereunder. |
11. | Environmental Matters |
11.1. | To the Best Knowledge of Seller, the Company has: |
(a) | complied in all material respects with applicable Laws concerning air, water or land and any other matter classified as an environmental matter under any such Laws (the Environmental Laws); |
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(b) | obtained and complied in all material respects with the terms and conditions of any and all Permit made or issued pursuant to or required by any Environmental Laws, all of which such Permits or other authorizations are in full force and effect (bestandskräftig), and to the Best Knowledge of Seller, no circumstance exists which will result in a material modification, supervision, revocation (Rücknahme oder Widerruf) or non-renewal of such Permits or other authorizations; |
(c) | except as disclosed on Schedule 11.1(c) hereto, there is no material civil, criminal or administrative action, Claim, investigation or other Proceeding or suit active, pending or, to the Best Knowledge of Seller, threatened in writing against the Company or any of the Companys officers or directors based on Environmental Laws; |
(d) | not received any written notice, request for information, citation, complaint, summons or order relating to any violation or alleged violation of, or any liability under, any Environmental Laws in connection with the Company in the past 3 (three) years, or, if unresolved, in any previous years; |
(e) | no outstanding, pending or currently in effect Claims, Orders or Proceedings relating to compliance with or liability under any Environmental Laws affecting the Company; and |
(f) | not released any hazardous substance on or from the Companys real property that violated, requires reporting, or requires any response action under any Environmental Laws, other than in compliance with the Permits validly issued to the Company. |
11.2. | The Company is not required to make any material expenditure or investment to comply with any Environmental Laws. |
12. | Tax Matters |
12.1. | All Tax Returns required to be filed prior to the Signature Date by the Company have been filed in a timely manner to all relevant Tax Authorities. To the Best Knowledge of Seller, all such Tax Returns |
(a) | have been prepared in the manner required by applicable law; and | ||
(b) | are true, correct and complete and are neither subject of any material dispute nor are they likely to become the subject of any material dispute with the Tax Authorities; and | ||
(c) | accurately reflect the liability for all Taxes of the Company. |
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12.2. | The German tax assessments of the Company with respect to any income taxes are final up to and including the financial year ending on 30 September 2009. | ||
12.3. | All Taxes attributable to the operations or activities of the Company for all times prior to 30 September 2010, have been either paid in full or full accruals (Rückstellungen) have been made in the accounts as of 30 September 2010. | ||
12.4. | Except as set forth in Schedule 12.4 hereto there are no accounting or valuation differences between the figures to be shown in the last statutory financial statements of the Company and the figures relevant for tax purposes as of 30 September 2009. | ||
12.5. | The Tax contribution account (steuerliches Einlagenkonto) of the Company in the meaning of Sec. 27 KStG amounts to at least EUR 0.00 (zero Euros) as of the end of the preceding Tax assessment period. | ||
12.6. | The corporate Tax credit (Körperschaftsteuerguthaben) of the Company in the meaning of Sec. 37 para. 4, 5 KStG, reduced by all annual refunds received until 30 September 2010, amounts to at least EUR 34,041.60 EUR (thirty-four thousand and forty-one sixty Euros) as of 30 September 2010. | ||
12.7. | The corporate Tax increase amount (Körperschaftsteuererhöhungs-betrag) of the Company in the meaning of Sec. 38 KStG, reduced by all annual payments made until 30 September 2010, amounts to at least EUR 0.00 (zero Euros) as of 30 September 2010. | ||
12.8. | There has been and will be no transaction in the Company up to and including the Signature Date which qualifies tax-wise as hidden distribution of profits / constructive dividend (verdeckte Gewinnausschüttung). | ||
12.9. | The Company has not been part of a fiscal unity (Organschaft) for corporate, trade or value added Tax purposes as of and prior to the Signature Date. |
13. | Material Contracts |
13.1. | Except as set forth on Schedule 13.1 hereto, as of the date hereof, the Company is not party to any written or, to the Best Knowledge of Seller, oral: |
(a) | agreement, contract or commitment relating to the employment of any Person, or any bonus, deferred compensation, pension, profit sharing, stock option, employee stock purchase, retirement, severance, change of control or other employee benefit plan or arrangement; |
(b) | agreement, contract, commitment or restriction relating to capital expenditures other than contracts, agreements or commitments not exceeding EUR 10,000.00 (in words: ten thousand Euros) individually, or EUR 10,000.00 (in words: ten thousand Euros) in the aggregate; |
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(c) | loan or advance to, or investments in, any Person or any agreement, contract or commitment relating to the making of any such loan, advance or investment; |
(d) | loan or credit agreements, promissory notes and other instruments of indebtedness; |
(e) | guarantee, surety or other contingent liability in respect of any indebtedness or obligation of any Person; |
(f) | management service, consulting, maintenance or any other similar agreement, contract or commitment (including any employee lease or outsourcing arrangement); |
(g) | agreement, contract or commitment limiting the ability of the Company to engage in any line of business or to compete with any Person or to solicit any Person for employment; |
(h) | license, franchise, distributorship or other agreements; |
(i) | agreement, contract or commitment which involves aggregate payments of EUR 10,000.00 (in words: ten thousand Euros) or more which are not covered by any other subparagraph of this Section. For the avoidance of doubt, this subsection does not include any agreements with customers; |
(j) | agreement, contract or commitment regarding (i) the purchase, sale, lease or disposal of any capital stock or other securities of the Company or (ii) the purchase, sale, lease or disposal of any assets of the Company other than in the Ordinary Course of Business; |
(k) | agreement, contract or commitment (other than as set forth in item (a) above) with any shareholder or employee of the Company (including any officer, director, agent or consultant); |
(l) | agreement or arrangement regarding confidentiality; or |
(m) | agreement, contract or commitment outside the Ordinary Course of Business. |
(hereinafter collectively the Material Contracts). |
13.2. | Correct and complete copies of the items set forth on Schedule 13.1 have previously been furnished to Purchaser. | ||
13.3. | All of the Material Contracts and the leases will, following the Signature Date, remain enforceable by the Company and binding on the other Party thereto, without the consent, approval, novation or waiver of any third party. The Company is not in default, nor, has any event occurred which, with the giving |
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of notice or the passage of time or both, would constitute a default, under any Material Contract, Lease or any other obligation owed by the Company, and no event has occurred which, with the giving of notice or the passage of time or both, would constitute a default by any other party to any such Material Contract, Lease or obligation. |
13.4. | To the Best Knowledge of Seller, each of the Material Contracts and Leases is in full force and effect, is valid and enforceable in accordance with its terms and is not subject to any Claims, charges, setoffs or defences. | ||
13.5. | Each Material Contract and Lease was effected on market terms in arms-length negotiations. |
14. | Intellectual Property Rights |
14.1. | To the Best Knowledge of the Seller, except as set forth in Schedule 14 hereto, the Company does not own any patents, trade names, trade marks, service marks, service names, domain names, copyrights and other intellectual property rights (including all applications for the protection thereof) (the Intellectual Property Rights). | ||
14.2. | The Seller and the Company have taken reasonable precautions to protect, document and safeguard all trade secrets, know-how, Confidential Information, customer lists, software, technical information, data, process technology, plans, drawings, and blue prints which relate to the Business of the Company. |
15. | Employment Matters |
15.1. | Schedule 15.1 hereto contains true and complete anonymous lists of the titles, salary or wage, benefits (including details of all profit sharing, incentive and bonus arrangements), tenure, work status, age, any characteristics giving rise to special employment protection (including, without limitation, disability and pregnancy) and time and vacation accounts of all directors, officers and employees of the Company. To the Best Knowledge of Seller, no employee has indicated to the Seller or the Company that he or she intends to resign or retire as a result of the transactions contemplated by this Agreement or otherwise within one (1) year after the Signature Date. All salary and wage payments have been made when due. | ||
15.2. | The Company does not have any obligation, contingent or otherwise, nor any commitment or agreement to enter into any service or employment contract. | ||
15.3. | No works council (Betriebsrat) exists. The Company is not and has not experienced during the last three (3) years any actual or threatened strike, work stoppage, slowdown, or lockout, union organizing effort or demand for recognition, labor grievance proceeding, claim or proceeding under any labor law, equal employment opportunity law, wage and hour law, occupational |
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safety and health law or any other employment laws and is not subject to any pending proceedings, nor are any such proceedings reasonably expected or threatened between the Company, on the one hand, and any current or former employees thereof, on the other hand. | |||
15.4. | The Company has complied in all material respects with all applicable laws relating to the employment of labor, including provisions thereof relating to wages, hours, equal opportunity, non-discrimination and non-retaliation, harassment, safety, and payment of employment related Taxes. The Company is not and has not been a party to or bound by any shop agreements (Betriebsvereinbarungen) or collective bargaining agreements (Tarifverträge). Except as set forth on Schedule 15.4 hereto the Company has not introduced any applicable usages (betriebliche Übungen). | ||
15.5. | The Company has not paid any bonus, incentive or similar payment to the Seller for any portion of the fiscal year of the Company ending on 30 September 2009, whether based on financial results or otherwise. | ||
15.6. | The Company does not have any obligation to make any severance, change-of-control or transaction bonus payment, or any payment of compensation for loss of office, employment or redundancy to any present or former employee who has performed services for the Company or to any director or officer as a direct consequence of this transaction. |
16. | Social Security Matters |
16.1. | The Company is in material compliance with all applicable pension and social security laws. All social security, pension fund, benefit plan or similar payments due by the Company in favour of the employees, under applicable law or any benefit plans (Benefit Plans) for any period ending prior to consummation of the transaction contemplated hereby, have been fully paid or adequately accrued in the Financial Statements. | ||
16.2. | Schedule 16.2 hereto contains a correct and complete list of all of the Companys Employee Benefit Plans and the participants or beneficiaries thereof. All contributions required to be made under the terms of any such Benefit Plans until the consummation of the transaction contemplated hereby have been made in a timely manner or have been adequately accrued in the relevant Financial Statements. | ||
16.3. | Except for the pension undertaking (Versorgungszusage) for the Seller set forth in Section 16.5 below and the pension commitments described in Schedule 16.3 hereto, the Company has not sponsored, maintained or contributed to company pension schemes (betriebliche Altersversorgung) beyond the statutory German pension system; in particular, no old age, widows, orphans or invalidity pensions, payments in the event of death, early retirement or termination arrangements apply to any of the employees of the |
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Company, their relatives or successors; no Liabilities of the Company exist under any agreement or commitment relating to pensions or similar benefits including, without limitation, old age, widows, orphans and invalidity pensions, payments in the event of death, early retirement or termination arrangements. |
16.4. | All contributions required to be made by the Company under the undertakings of company retirement provisions in form of a pension fund (Zusagen der betrieblichen Altersversorgung in Form einer Pensionskasse), as further described in Schedule 16.3 hereto, have been made to the respective pension funds on or before their due dates. | ||
16.5. | The Company paid an amount of EUR 488,000.00 (in words: four hundred eighty eight thousand Euros) to the Seller as compensation for any and all claims, demands, losses, costs, expenses (including reasonable attorneys fees and expenses), obligations, liabilities and damages of every kind and nature whatsoever, whether now existing, known or unknown, relating in any way to the pension undertaking (Versorgungszusage) from the Company to the Seller (the Pension Payment). |
17. | Insurance |
17.1. | Schedule 17.1 hereto is a correct and complete list and description, including policy number, coverage and deductible, of all insurance policies owned by the Company, correct and complete copies of which policies have previously been delivered to the Purchaser. | ||
17.2. | Such policies are in full force and effect, all premiums due thereon have been paid and the Company is not in default thereunder. The Company has not received any notice of cancellation or intent to cancel or increase or intent to increase premiums with respect to such insurance policies nor, to the Best Knowledge of Seller, is there any basis for any such action. | ||
17.3. | There are no pending Claims and any Claims in the past three (3) years with any insurance company by the Company and any instances within the previous three (3) years of a denial of coverage of the Company by any insurance company. |
18. | Litigation and Investigations |
18.1. | Except as set forth on Schedule 18.1 hereto, there is no Proceeding, Claim or Order pending or, to the Best Knowledge of Seller, threatened against the Company (or pending or threatened against any of the officers or directors of the Company), or to which the Company is otherwise a party, or against the Seller or to which the Seller is a party with respect to the Business, operations or assets of the Company before any court, arbitral tribunal or before any Governmental Authority, nor is there, to the Best Knowledge of the Seller, any basis for any such Proceeding, Claim or Order. |
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18.2. | The Company is not subject to any judgment, Order or decree of any court, arbitral tribunal, governmental department, commission, board or agency, nor has it received any written opinion or memorandum or legal advice from legal counsel retained by the Company or the Seller to the effect that they are exposed, from a legal standpoint, to any liability which may be material. |
18.3. | Schedule 18.3 hereto sets forth a list of all closed litigation matters to which the Company (or the Seller with respect to the business, operations or assets of the Company) was a party during the three (3) years preceding the date hereof, the date such litigation was commenced or concluded, and the nature of the resolution thereof (including amounts paid in settlement or judgment). |
19. | Licenses and Permits |
19.1. | To the Best Knowledge of Seller, the Company owns, holds, possesses or lawfully uses all the Permits necessary for the ownership, use, occupancy or operation of its assets and the conduct and operation of its business. | ||
19.2. | The Company is in full compliance with such Permits, all of which are in full force and effect (bestandskräftig), and neither the Company, nor the Seller has received any notices (written or oral) to the contrary and there is no basis for believing that any Permit will not be renewable upon expiration without the need to comply with any special qualification procedures or to pay any amounts other than routine filing fees. | ||
19.3. | None of such Permits will be adversely affected by consummation of the transaction contemplated hereby, none of such Permits will expire or terminate as a result of the consummation of the transaction contemplated hereby, and each such Permit issued to or held by the Company will continue in full force and effect following the Signature Date without requiring the consent or approval of any Person. |
20. | Absence of Conflicting Interests / Affiliate Transactions |
20.1. | Except as set forth in Schedule 20.1 hereto and apart from the Consulting Agreement, the Seller does not: |
(a) | own any property or right, whether tangible or intangible, which is used by the Company; |
(b) | have any Claim or cause of action against the Company; |
(c) | owe any money to the Company or is owed money by the Company; |
(d) | be a party to any contract or other arrangement, written or oral, with the Company; or |
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(e) | provide services or resources to the Company or is dependent on services or resources provided by the Company. |
20.2. | Except as described in Schedule 20.2 hereto, neither the Company nor the Seller or any Affiliate thereof: (a) owns, directly or indirectly, an interest in any person that is a competitor, customer or supplier of the Company or that otherwise has material business dealings with the Company or (b) is a party to, or otherwise has any direct or indirect interest opposed to the Company under any Material Agreement or other material business relationship or arrangement with respect to the Business. | ||
20.3. | Schedule 20.3 hereto sets forth every business relationship (other than normal employment relationships) between the Company, on the one hand, and the Companys present or former officers, directors, employees or members of their families (or any entity in which any of them has a material financial interest, directly or indirectly), on the other hand. | ||
20.4. | No director or manager, former director or manager, shareholder, or employee or former employee of, or any Person not dealing at arms length with, the Company is engaged in any transaction or arrangement with or is a party to a contract with, or has any indebtedness, liability or obligation to, the Company, relating to the Company or the Companys business. |
21. | Export and Import Compliance |
22. | Bank Accounts |
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23. | Product Warranty |
24. | Product Liability |
25. | Broker Fees |
26. | Complete Information |
27. | No Material Adverse Change |
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1. | Purchasers Authority |
1.1. | The Purchaser is competent and has full power, right and authority to enter into and perform its obligations under the Transaction Documents to which it is a party. | ||
1.2. | There is no requirement for the Purchaser to make any filing to or to obtain any approval from any Governmental Authority, other than those provided for in this Agreement, as a condition to consummating the transaction contemplated by this Agreement. |
2. | Financial Capability |
3. | Litigation |
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